medical mistake

The difference between medical malpractice and medical negligence is simply stated, but it invokes far-reaching implications. In a nutshell, medical negligence constitutes a failure to meet the applicable standard of patient care. This failure does not rise to the level of medical malpractice, however,  unless you are harmed by it in some way.

The Legal Elements of Medical Malpractice

To win compensation, either in court or at the settlement table, you must prove the presence of each of the legal elements of medical malpractice by a “preponderance of the evidence.” In plain English, that means that your evidence must show that it is more likely than not (about a 51 percent likelihood) that each of the elements of medical malpractice are present. These elements are:

  1. The existence of a doctor-patient relationship between you and the defendant. The defendant must have treated, cared for or consulted with you, or have agreed to do so. This relationship would not be establish if, say, an off-duty doctor happened upon the scene of a car accident that you were involved in and rendered roadside first aid.
  2. The defendant’s treatment fell short of the applicable “standard of care.” The standard of care is a professional standard that is typically established in court by expert medical witnesses — “What would a reasonably prudent doctor have done under similar circumstances?”
  3. The defendant’s failure to meet the standard of care is what caused the harm you suffered.
  4. The harm you suffered caused you damages that can be remedied through financial compensation (medical expenses, lost earnings, pain and suffering etc.)

Once you have established the first two elements, you have established medical negligence. You must also establish the third and fourth elements, however, to hold the defendant liable for medical malpractice compensation.

Common Errors Made by Doctors and Other Healthcare Professionals

Doctors are not gods, even though sometimes we need them to be. In fact, none other than the American Medical Association estimates that medical malpractice is the nation’s third-leading cause of death, right behind heart disease and cancer. Following are some of the most common errors that doctors make:

  1. Medication Errors

Common medication errors include prescribing the wrong drug, prescribing the wrong dosage, and prescribing a combination of drugs that could harm you when taken together even if they are not dangerous when taken individually. A doctor might ignore a “Should not be taken by pregnant women” warning, for example. In fact, the Institute of Medicine estimates that around 1.5 million people are harmed by medication errors every year.

  1. Misdiagnosis or Delayed Diagnosis

Misdiagnosis and delayed diagnosis are dangerous and potentially fatal. Misdiagnosis, for example, could result in misguided treatment that is more harmful than no treatment at all would have been. An unnecessary delay in diagnosis can allow a treatable condition to mature into a terminal illness.

  1. Anesthesia Errors

Anesthesia errors frequently cause permanent disability, brain damage and death. Common anesthesia errors include:

  • giving you too much anesthesia;
  • failing to monitor your vital signs; or
  • using defective equipment.
  1. Surgical Errors

A surgeon might injury you by clumsily puncturing your internal stomach, causing nerve damage, or failing to control excessive bleeding. Likewise, nursing staff might improperly execute post-op care, resulting in complications such as infection and even sepsis.

  1. Birth Injuries

A negligent healthcare provider might injure you, your baby or both of you, either during labor, during delivery or immediately after birth. Improper use of forceps, for example, can cause cerebral palsy, while failure to monitor vital signs can result in death, particularly for the baby.

How Expert Witnesses Are Used to Establish Medical Negligence

Medical malpractice cases are different from ordinary negligence cases, particularly with regard to the standard of care. In a car accident case, for example, the standard of care is usually a “reasonable person” standard. It can be a fairly straightforward matter to establish that the defendant driver failed to meet this standard of care if he rear-ended you while texting and driving – just apply a little common sense.

Compare the foregoing example with a medical malpractice case in which the doctor is alleged to have negligently performed an MRI instead of a CT scan, resulting in a delayed diagnosis. Obviously, common sense alone cannot determine whether the doctor acted negligently. Instead, the testimony of an expert medical witness may be needed.

Keep in mind that the other side may bring in their own expert witness to challenge your witness, and it will be up to the jury to decide who to believe. Your goal in bringing in an expert witness will be to prove (i) the exact standard of care that your doctor owed you; and (ii) that your doctor breached this standard of care.

Who Are These “Experts,” Anyway?

An expert medical witness is generally a doctor, a former doctor, or someone who could be expected to possess equivalent medical expertise (a medical researcher, for example). He needs to be someone skilled in the particular area of medicine that is at issue in the case (if you suffered an anesthesia error, for example, you will need an expert with recognized expertise in anesthesiology).

Most expert medical witnesses are paid by the side that retains him: the plaintiff or the defendant. The expert witness’ job is to review the case and issue an objective opinion on the merits of the claim. If his opinion doesn’t support your claims, however, you are not going to have him testify for you – but the defendant might.

Many people work full-time as expert medical witnesses, and you can be sure that the defendant’s lawyer will bring to the jury’s attention the fact that the witness is being paid for his testimony. If the other side calls expert witnesses, your lawyer will bring out the fact that he is being paid as well (if he doesn’t, then you need a new lawyer!).

Proving the Standard of Care

Your doctor is obligated to provide you with the level of care that a prudent, competent, and similarly-educated, similarly-trained, healthcare professional in the same community would provide. “Similarly-trained” is an important qualification: A cardiologist would be held to a higher standard than a general practitioner, for example, at least while performing open heart surgery.

If your expert witness is a local doctor practicing in the same specialty as the defendant, he might testify as to what he would have done under the same circumstances. In many cases, however, local doctors are simply unwilling to testify against their peers, which is why professional expert witnesses testify in so many medical malpractice lawsuits.

Proving That the Defendant Failed to Meet the Standard of Care

Once the standard of care has been established, the expert medical witness will state his opinion on the defendant’s treatment in comparison with the standard of care he just established. This failure could be something the doctor did that he shouldn’t do or something that he didn’t do that he should have done.

Of course, the defendant will either (i) argue that another (lower) standard of care applies; (ii) argue that the defendant complied with the applicable standard of care; or (iii) make both arguments. Since the jury and even the judiciary are likely to be composed of laypersons without specialized knowledge of the issues at stake, a persuasive presentation carries more weight than it would at, say, a medical convention attended only by medical professionals.

Causation and Medical Malpractice

Even when medical negligence is proven, it is causation that distinguishes negligence from medical malpractice, establishes liability, and results in a court order to pay compensation. Although most medical malpractice cases hinge on the precise standard of care to be applied, a good many hinge on the issue of causation. Negligence in the air, it is said, will not do – it must be causally connected to the harm that is being complained of.

Suppose your doctor throws your X-rays in the trash without even looking at them. Although it would be difficult to argue that this wasn’t negligence, it will not amount to malpractice unless you can prove that it caused you damages (the X-rays would have allowed early diagnosis of a dangerous but treatable condition, for example).

Two Types of Causation

Connecticut personal injury law recognizes two types of causation: cause in fact and proximate cause. To say that an act was the cause in fact of a particular harm means that the harm would not have occurred unless the act had preceded it. This is not enough to establish legal liability.

Proximate cause, by contrast, can result in liability because it is based on the foreseeable consequences of a particular act. If, for example, your doctor prescribed you a medication that was harmful only because you suffered from a pre-existing condition that couldn’t have been detected in advance, then the doctor’s prescription was the cause in fact but not the proximate cause of the harm you suffered. This is because he could not have been expected to foresee the harm.

Causation-Related Loopholes Used by Defendants

The most common ways of disputing causation in a medical malpractice claim include:

  • Lack of proximate cause.
  • The harm was caused by a pre-existing condition rather than the doctor’s negligence.
  • Superseding or intervening cause – the harm was caused by a third party, such as the manufacturer of defective medical equipment.
  • The harm complained of was your own fault (see below).

Comparative Fault: The Last Loophole

Even if you prove that your doctor failed to meet the applicable standard of care when treating you (and therefore that the doctor was negligent), your doctor might still be able to escape medical malpractice liability, or at least reduce the amount of that liability, by alleging comparative fault.

Under Connecticut’s comparative fault system, your doctor’s liability can be reduced to the extent that the harm you suffered was your own fault. If you were 25 percent at fault, for example, the doctor’s liability would be reduced by precisely 25 percent. Perhaps you failed to take prescribed medicine, for example, or you smoked while pregnant after your doctor warned you not to. If you were mostly at fault (51 percent or more), your doctor’s liability will be zero.

Contact Berkowitz Hanna Today

If you believe that you may have become a victim of medical malpractice, you are going to need a skilled and experienced medical malpractice lawyer on your side to maximize your chances of receiving full compensation. Contact Berkowitz Hanna today to schedule a no-obligation case evaluation. Call us now or contact us online to get started.