Medical Malpractice Cases

AuthorLarry Booth/Roger Booth
14-1 (Rev. 2, 11/13)
Chapter 14
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
§14:40 Client Interview Checklist
§14:41 Investigation Checklist
§14:42 Find a Real Expert, Not a Professional Witness
§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
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
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
§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
§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
§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)
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

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