Support our online development, and advance our onground research initiatives in free market economics, as we seek to showcase the brightest Next-Gen minds.
THE ME-P DISCLAIMER: Posts, comments and opinions do not necessarily represent iMBA, Inc., but become our property after submission. Copyright © 2006 to-date. iMBA, Inc allows colleges, universities, medical and financial professionals and related clinics, hospitals and non-profit healthcare organizations to distribute our proprietary essays, photos, videos, audios and other documents; etc. However, please review copyright and usage information for each individual asset before submission to us, and/or placement on your publication or web site. Attestation references, citations and/or back-links are required. All other assets are property of the individual copyright holder.
Understanding the Malpractice Trial Process
By Dr. Jay S. Grife; Esq, MA
In all civil trials, the plaintiff, as the accuser, has the burden of proving his case. Much like a criminal defendant, a civil defendant has no burden and is presumed “innocent” of any claim by the plaintiff. As a result, if the plaintiff presents no evidence, or insufficient evidence to support his claim, the defendant wins without having to present his case. The burden the plaintiff carries is that he must prove his case by what is called a preponderance of the evidence. In other words, the plaintiff must prove it is more likely than not that he should win. The best way to visualize this burden is to imagine a set of scales. If the scales are even, or tipped in favor of the defendant, then the plaintiff has not carried his burden, and loses. In order to prevail, the plaintiff must tip the scales in his favor.
Proving Medical Malpractice
To prove a case of medical malpractice, a plaintiff-patient must present evidence that the defendant-doctor was negligent, and the plaintiff does this by proving the treatment provided was below the applicable standard of care. The “standard of care” is the care and skill that a reasonably prudent practitioner would provide in treating a patient. It is established by the medical community at large, and is constantly evolving. Care that violates the standard of care today may not necessarily violate the standard of care several years ago. This distinction is an important one, since most cases take several years to get to trial. The standard of care is never based on the outcome of the case; a bad result does not necessarily mean a violation of the standard of care.
The Medical Expert Witnesses
Expert medical testimony is required to establish a violation of the standard of care in virtually all medical malpractice cases. A plaintiff who fails to present the required expert medical testimony in a medical malpractice case will lose. The plaintiff must also produce expert medical testimony that the alleged negligence caused the injury.
For example, suppose that a patient’s widow brings a medical malpractice case against a surgeon who admitted the patient for removal of an AO plate embedded in bone. The plaintiff-widow alleges that the surgeon should have done something to prevent a pulmonary embolism, which occurred three days after the patient was dismissed from the hospital, killing him. The patient might have an expert who would testify that she would not have removed the AO plate, but left it in place. Such testimony does not carry the burden of proving care below the standard required of the surgeon. Indeed, in most cases, the standard of care allows a practitioner to choose from a variety of treatment options within an acceptable range. Mere testimony by an expert witness that “I would have treated this patient differently” is insufficient to establish a breach of the standard of care. The bad result also is not itself proof of any negligence. Nor is there any evidence that the doctor caused the patient’s death (i.e., that the embolism would not have occurred without the alleged negligence of the surgeon). Therefore, doctor wins on all elements.
Assessment
Have you ever been involved in a medical malpractice trial; or other healthcare litigation process? The Medical Executive-Post readers are interested in hearing your story.
Conclusion
And so, your thoughts and comments on this Medical Executive-Post are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, be sure to subscribe to the ME-P. It is fast, free and secure.
Link: http://feeds.feedburner.com/HealthcareFinancialsthePostForcxos
Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com or Bio: www.stpub.com/pubs/authors/MARCINKO.htm
Get our Widget: Get this widget!
Our Other Print Books and Related Information Sources:
Practice Management: http://www.springerpub.com/prod.aspx?prod_id=23759
Physician Financial Planning: http://www.jbpub.com/catalog/0763745790
Medical Risk Management: http://www.jbpub.com/catalog/9780763733421
Healthcare Organizations: www.HealthcareFinancials.com
Health Administration Terms: www.HealthDictionarySeries.com
Physician Advisors: www.CertifiedMedicalPlanner.com
Subscribe Now: Did you like this Medical Executive-Post, or find it helpful, interesting and informative? Want to get the latest ME-Ps delivered to your email box each morning? Just subscribe using the link below. You can unsubscribe at any time. Security is assured.
Link: http://feeds.feedburner.com/HealthcareFinancialsthePostForcxos
Sponsors Welcomed
And, credible sponsors and like-minded advertisers are always welcomed.
Link: https://healthcarefinancials.wordpress.com/2007/11/11/advertise
Share this:
Filed under: "Doctors Only", Book Reviews, Ethics, Professional Liability, Quality Initiatives, Risk Management | Tagged: burden of proof, david marcinko, defendant, expert witness, jay grife, malpratice trial, medical expert, medical liability, medical malpractice, medical negligence, medical risk management, plaintiff, proving malpractice, standard of care |
The Leading Business Education Network for Doctors, Financial Advisors and Health Industry Consultants 
Did you know that the hard-drive or solid state drive [SSD] of a PC or MAC can be subpoenaed as part of the malpractice, or fraud discovery process and legal proceedings?
A malpractice situation is civil, but fraud allegations may be criminal and the FBI may also get involved. And, many doctors are not aware that every deletion or addition to a computer leaves a time stamp stored in a covert hidden file.
Companies like SunBlock Systems of McLean VA specialize in this type of examination and data recovery.
Frank
LikeLike
More on medical malpractice and physician liability
http://www.businessweek.com/magazine/content/09_39/b4148030880703.htm
And so, if malpractice is such as small part of overall healthcare costs – as the liberals, ABA and trial lawyers who wish no tort reform often opine – then why can’t or won’t they reform it if the percentage is so small?
Jerome
LikeLike
ME-P Readers
Will limiting medical malpractice lawsuits save money?
http://www.msnbc.msn.com/id/33246358/ns/health-health_care/
You decide.
Thomas
LikeLike
Dr. Grife,
President Barack Obama’s willingness to consider alternatives to medical malpractice lawsuits is providing a boost for taking such cases out of the courtroom and letting experts, not juries, decide their merits.
http://news.yahoo.com/s/ap/20091020/ap_on_go_co/us_health_care_medical_malpractice
Lee
LikeLike
US Begins Handing out Grants to Reduce Medical Malpractice Suits?
Yep, the government is beginning to hand out $25 million in grants aimed at reducing medical malpractice lawsuits, part of a compromise offered by President Barack Obama last year in response to calls for an overhaul of the malpractice system.
http://online.wsj.com/article/SB10001424052748704312104575299633552541778.html?mod=WSJ_WSJ_US_PoliticsNCampaign_4
Can you believe it! Good idea or political showmanship?
Jim
LikeLike
Lawsuit fears can lead to overtesting in ERs
Emergency room doctors among the most likely to be sued for malpractice
http://www.msnbc.msn.com/id/37762984/ns/health-health_care
“Our society puts more weight on technology than on physical exams,” Dr. Amgela Gardner said. “In other words, why would you believe a doctor who only examines you when you can get an X-ray that can tell something for sure?”
But, tests, tests and more tests is not the way to go!
Dr. Zeke
LikeLike
Most Docs Have Been Sued
There are about 95 medical liability claims filed for every 100 physicians—or almost one per doctor—and nearly 61% of physicians age 55 and older have been sued, according to a report released by the American Medical Association and based on a survey of 5,825 “non-federal patient care physicians” conducted in 2007 and 2008.
The survey, which included doctors practicing across 42 specialties, found that 42.2% of the respondents had a claim filed against them at some point, with more than 20% of physicians sued at least twice.
As physicians age, it is more likely they will get sued, according to the survey, which found that only 15.3% of doctors under age 40 had been sued and only 4.2% had been sued twice; 45.3% doctors between 40 and 54 had been sued, with 22.3% having been sued twice; and 60.5% of doctors 55 and older had been sued, with 39.2% having been sued at least twice.
The study also found that 47.5% of male physicians had been sued, with 26.3% having been sued twice; and that 23.9% of female doctors had been sued and only 9.4% had been sued twice.
Source: Andis Robeznieks, Modern Healthcare [8/4/10]
LikeLike
Mediation – Not Yet!
Using mediation to resolve medical malpractice lawsuits offers many benefits, but barriers put up by doctors, hospitals, and their lawyers often stand in the way of it being employed effectively, a study co-authored by Columbia Law School Professor Carol Liebman finds.
http://jhppl.dukejournals.org/cgi/content/abstract/35/5/797
The study found that when used, mediation could not only reduce the costs of litigation, and has the potential to offer closure to plaintiffs and ensure that procedures are changed in hospitals to prevent recurrences of the error that sparked the lawsuit. However, too often that potential goes unrealized.
Limon
LikeLike
Medical Liability Reform Bill Introduced in House
Dr. Phil Gingrey (R-GA) and two other U.S. House members introduced a bipartisan medical liability reform bill to try to lower healthcare costs and strengthen the relationship between physicians and their patients.
Gingrey, Lamar Smith (R-TX), and David Scott (D-GA) are co-sponsors on the Help Efficient, Accessible, Low-cost, Timely Healthcare Act, or the HEALTH Act. Gingrey said in a news release the bill would save billions of dollars each year in federal taxpayer dollars by reducing the need for so-called defensive medicine. He also said it would encourage health practitioners to maintain their practices, while reduce costs for patients.
Source: Jessica Zigmond, Modern Healthcare [1/25/11]
LikeLike
Budget doubles malpractice grants to states in FY 2012
[Avoids reform recommendations]
Did you know that President Obama wants to double down on state efforts to reform the medical liability system in the upcoming fiscal year, but he is avoiding proposals for substantial policy changes as Republicans are charging forward on the issue?
http://thehill.com/blogs/healthwatch/health-reform-implementation/143859-budget-doubles-malpractice-grants-to-states-in-fy-12-avoids-reform-recommendations
Blake
LikeLike
LawCash.net
LawCash is a specialty finance company, concentrating in litigation funding and attorney financing services.
LawCash is headquartered in Brooklyn, New York, just outside of Manhattan, with additional offices nationwide. It has provided tens of millions of dollars of litigation funding for thousands of potential plaintiffs, plaintiffs, and attorneys.
In addition to pre- and post-settlement litigation funding, LawCash offers a full suite of attorney-funding services http://www.lawcash.net
Can you believe it? Is this an emerging trend?
http://www.fa-mag.com/component/content/article/38-features/7399.html?Itemid=178
Karen
LikeLike