Medical Malpractice Cases

• Author: Larry Booth/Roger Booth
• Pages: 447-482

14-1 (Rev. 2, 11/13)

Chapter 14

MEDICAL MALPRACTICE

CASES

I. ELEMENTS OF CAUSE OF ACTION AND DEFENSES

A. Theories of Liability

§14:01 Medical Negligence

§14:02 Common Areas of Liability

§14:03 Hospital Negligence

§14:04 Lack of Informed Consent

B. The X-Factor

§14:10 The X-Factor: More Than Negligence

§14:11 Alteration of Records as the X-Factor

§14:12 Greed as the X-Factor

§14:13 Dishonesty as the X-Factor

C. Maximizing Damages

§14:20 Statutory Limits on General Damages

§14:21 Can the Jury Be Told?

§14:22 Tactics to Avoid Limitations on Damages—Checklist for Building Specials

§14:23 Statutory Annuity Pay Outs

§14:24 Collateral Source Rule

D. Defenses and Defense Strategies

§14:30 Patient’s Negligence

§14:31 No Causation

§14:32 Tactics Between Doctor and Hospital

II. INTERVIEW AND INVESTIGATION

§14:40 Client Interview Checklist

§14:41 Investigation Checklist

§14:42 Find a Real Expert, Not a Professional Witness

III. PLEADINGS

§14:50 Form: Medical Malpractice Complaint; Missed Cancer Diagnosis

§14:51 Form: Medical Malpractice Complaint; Foreign Object

Personal Injury Handbook 14-2

§14:52 Form: Medical Malpractice Complaint; Negligence; Battery

§14:53 Form: Medical Malpractice Complaint; Wrongful Death

§14:54 Requirement for Advance Administrative Hearings

IV. PLAINTIFF’S WRITTEN DISCOVERY

A. Interrogatories

§14:60 Defendant’s Insurance Coverage

§14:61 Form: Medical Malpractice Interrogatories; Insurance Coverage

§14:62 Additional Witnesses

§14:63 Form: Medical Malpractice Interrogatories; Identification of Witnesses Present

During Surgery

§14:64 Prior Malpractice Claims Against Defendants

B. Document Production

§14:70 Obtaining All Records

§14:71 Form: Medical Malpractice Requests for Production

V. DEPOSITION CHECKLISTS

A. Plaintiff’s Depositions

§14:80 Deposition of Defendant Doctor

§14:81 Depositions of Nurses and Hospital Personnel

§14:82 Admitting Personnel

§14:83 Fetal Monitoring Strips

§14:84 Defense Experts

B. Preparation for Defense Depositions

§14:90 Plaintiff’s Experts

§14:91 Checklist: Preparing Plaintiff to be Deposed

VI. MOTIONS

§14:100 Defendant’s “Phony” Motion for Summary Judgment

§14:101 Form: Defendants’ Memorandum in Support of Motion for Summary Judgment and

Declaration; Medical Malpractice

§14:102 Form: Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary

Judgment and Supporting Declarations; Medical Malpractice

§14:103 Motions to Obtain Prior Malpractice Evidence

VII. SETTLEMENT STRATEGIES

§14:110 Doctor’s Consent to Settle

§14:111 Statutory Reporting Limits

§14:112 Insurance Company Strong Arming in Policy Limit Cases

§14:113 Mediation Checklist

§14:114 Form: Pre-Mediation Settlement Demand; Medical Malpractice

VIII. TRIAL PREPARATION

§14:120 Trial Notebook

§14:121 Focus Groups

§14:122 Show and Tell

§14:123 Opening Statement Checklist

§14:124 Jury Selection Checklist

§14:125 Closing Argument

14-3 Medical Malpractice Cases §14:03

(Rev. 2, 11/13)

I. ELEMENTS OF CAUSE OF

ACTION AND DEFENSES

A. Theories of Liability

§14:01 Medical Negligence

Medical negligence is the act of providing medi-

cal services that fall below the accepted standard of

practice. In other words, doctors set their own stan-

dards by generally accepted practices. In past years,

standards were different in different communities, but

that is no longer true. As a result of peer literature,

standard texts, national seminars and even the Inter-

net, good practice in one community is the same as it

is in any other community. Even rural communities

have the same rules, albeit modified somewhat by the

resources that are available.

Most lawsuits allege that the doctor (or hospital)

fell below the standard of practice for his or her type

of practice. No one defends the argument that the

standards in Omaha are any different from the stan-

dards in New York City.

The negligence may consist of an error in diagno-

sis or treatment, such as failing to diagnose a serious

or life threatening illness, prescribing the wrong drug,

or performing surgery or a medical procedure negli-

gently. It often consists of failing to refer the patient

to a specialist.

To establish medical negligence, the plaintiff

must prove:

• That the defendant owned a duty of care to

the plaintiff (e.g., the parties had a doctor/

patient relationship).

• The applicable standard of care.

• That the defendant’s care of the plaintiff fell

below that standard (breach of duty).

• That the plaintiff suffered an injury.

• That the defendant’s deviation from the stan-

dard of care has a causal connection to the

plaintiff’s injury.

§14:02 Common Areas of Liability

In many areas of practice, such as products liabil-

ity, premises liability or even auto accidents, there is

a great deal of grey area for argument and fashion-

ing theories of liability. This is not true in medical

malpractice. It is vital to get it right. If the case does

not involve what honest doctors would agree is mal-

practice, then the plaintiff attorney should walk

away regardless of the injuries. Medical malpractice

carriers are very sophisticated and will not settle a

bogus claim.

Some common areas that may produce legitimate

cases are:

• Injuries occurring in the birth process. These

include brain injuries from taking the baby

too late and orthopedic injuries (sometimes of

a permanent nature) from removing the baby

negligently. These cases are among the most

popular because they lead to huge lifetime

specials and thereby minimize the limitations

in many states on general damages.

• Failure to recognize a burgeoning crisis,

such as a potential for a burst appendix, rup-

tured aorta, bowel obstruction, or the like.

• Failure to refer the patient to a specialist. In

that situation, the general practitioner is held

to the same standard as a specialist, even

though he is not qualified as a specialist.

• Failure to diagnose a disease or condition,

like cancer, until it has done irreversible

damage or can no longer be cured.

• Poorly performed surgery or surgery that is

performed on the wrong organ or limb (sur-

prisingly, not that uncommon).

§14:03 Hospital Negligence

The hospital or medical facility at which the

plaintiff was treated may be liable for its own negli-

gence and vicariously liable for the negligence of its

employees (doctors, nurses and other licensed health-

care providers) who were acting within the scope of

their employment. For example, in surgical cases,

the hospital may be implicated if the injury is due

to either inadequate pre-operative or post-operative

care. For example, nurses may fail to alert a physician

about a change in the patient’s condition.

Ordinarily attending physicians working in hos-

pitals are considered independent contractors rather

than employees. Thus, the doctrine of respondeat

superior is inapplicable to them. However, there

are situations under the law in various jurisdictions

where doctors may be held to be actual or apparent

agents of the hospital, such as in managed care facili-

ties. Sometimes, they may be held to be agents of the

hospital, such as where a patient is treated in an emer-

gency room by a doctor who the patient believes is