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Medical malpractice cases are usually expensive. Even a relatively simple case can cost tens of thousands of dollars (not including attorney’s fees). It costs a lot to pay expert witnesses, take depositions, thoroughly prepare a case for trial, try the case, and litigate any appeal following a verdict. More complex cases can cost hundreds of thousands dollars. Unfortunately, this means most viable medical negligence cases require significant damages. Significant damages generally means a permanent, debilitating injury or death. Significant damages are required because the magnitude of an injury is generally proportional to the amount that can be recovered. The amount of a recovery in a case with only minor or moderate damages is likely to be quickly eroded by the cost of litigation, leaving little or nothing, for the victim.
When negligence results in an injury, the injured person has a claim for harm suffered as a result of the negligence. The injured person’s spouse also has a claim for their loss of consortium resulting from the harm. Less frequently, a parent may have a claim for the loss of consortium of an injured child, and, likewise, a child for the loss of consortium of an injured parent. Parent-child loss of consortium claims generally arise only when the injury severely affects the nature of the relationship between the parent and child.
When negligence results in death, only the spouse, parent, or child of the decedent can make a claim. The amount of any recovery for the death of a loved one depends largely on the number and age of the claimants, the age and health of the decedent, and the nature of their relationships. A jury will view the magnitude of a young child’s loss of a parent much differently that it will an older child’s loss of an elderly parent.
Damages are either compensatory or exemplary. There are two types of compensatory damages – special and general.
Special damages are damages that can be easily quantified. They include things such as funeral expenses, lost wages, and loss of financial support, the cost of past and future medical care, and the cost of special provisions necessary to conduct activities of daily living, such as modifications to a house or car.
General damages are damages that cannot be easily quantified. Most people know them as pain and suffering damages. They are basically the same in an injury case as they are in a death case. They include: (1) pain, discomfort, suffering, disability, disfigurement and anxiety experienced both in the past and the future; (2) the loss of love, care, affection, companionship of a relationship; and (3) the loss of enjoyment of life including the ability to participate in life’s activities and the quality and extent of that participation enjoyed before the injury. A jury is instructed to consider all of these factors in light of the nature, extent and duration of an injury or effect of a death.
Expert witness testimony is often used to establish the amount of damages. Some of the more commonly used experts include a life care planner who can access the cost of medical treatment and other care required by the injured person; an economist to testify about how the cost of such care may change over time; a vocational rehabilitation specialist who can discuss what type of work a person may or may not be able to do and quantify any wage loss resulting from an injury; and, a psychiatrist or psychologist who can talk about how grief affects those who have lost a loved one.
Exemplary damages are punitive damages. Punitive damages are awarded to punish egregious conduct and make an example of what not to do. Such conduct must be established by clear and convincing evidence. Punitive damages are rarely awarded in any case, and even less frequently in medical negligence cases. Even where punitive damages are found to be appropriate, the amount of punitive damages is generally limited by law to the combined amount of special and general damages.
Damages are often overlooked by lawyers as an afterthought or something that should be obvious to the jury. This is absolutely the wrong approach. Damages are by far the most important issue in a medical negligence case, or any personal injury case for that matter. Significant effort must be spent developing this issue. Presenting damages can also be one of the most difficult things to do. It must be done in a way that appeals to a jury and is not offensive. A lawyer must appreciate that every juror will have unique life experiences and perspectives, but he or she must also understand how to best use the range of juror experience and perspective to help the jury understand the real impact an injury or deatht has on a particular set of victims. We have that skill set and have used it effectively over and over again.
In a medical malpractice case, the injured party (the plaintiff) has the burden of proof on the issue of causation. This means that the plaintiff must prove that a healthcare provider’s (a defendant’s) negligence caused an injury or death which likely would not have occurred if the defendant was not negligent. If a defendant was negligent, but the outcome would have been the same anyway, the plaintiff can’t prove causation and the defendant wins.
The parties in a lawsuit generally will have one or more competing expert witnesses testify about causation. A plaintiff’s experts will generally explain why they believe an injury or death was caused by the negligence. The defendant’s experts will say the injury or death was not caused by negligence, or that the injury or death would have occurred even of the defendant was not negligent.
Causation can be difficult to prove because it frequently involves subjective assessments by an expert about how a medical condition would have evolved if a defendant took different approach to treating it. Jurors often perceive this uncertainty as something less than proof.
In addition, the more causation experts there are, the more complicated a case is likely to be. The more complicated the case, the more likely a jury is to become confused and the more difficult it is for a plaintiff to prove causation. If the jury can’t decide whether the negligence made a difference, the defendant wins.
Experts testifying about causation can rely on a variety of sources of information to support their opinions, most frequently medical literature. Those opinions, however, must be based on the application of reliable medical principles. Causation can be especially difficult to establish in cases involving medical conditions which are not well understood because it is difficult to make scientific predictions about the outcome, regardless of the treatment rendered.
Lawyers handling medical negligence cases must have access to the very best medical professionals to testify about causation. The credentials of the causation expert witness, including his or her educational background, publishing history, experience, teaching, and recognition in the medical community plays an important role in juror perceptions. Perhaps even more important is the appearance of the expert. Is the expert likeable? Is he or she able to communicate well with a jury? Can the expert explain difficult medical concepts in simple terms that jurors can understand? Highly-regarded, well-credentialed medical experts who meet all of these criteria are to win any medical negligence case. Our firm has relationships with many such experts and the ability to identify and retain the very best on any particular subject.
In a medical malpractice case, it is necessary for an injured party (the plaintiff) to prove that a healthcare provider (the defendant), was negligent. In order to prove that a defendant was negligent, the plaintiff must prove that the defendant’s treatment fell below the standard of care (“SOC”). The SOC requires all health care providers to act reasonably and provide average care. Average care is a “C-” in grade school terms. A defendant falls below the SOC when the defendant either (1) fails to do something that a reasonable healthcare provider would have done, or (2) does something that a reasonable healthcare provider would not have done. One must always bear in mind that a bad outcome does not mean a healthcare provider was negligent. Bad things happen even when a patient receives the best possible case.
The SOC is established through expert witness testimony. Any expert witness who testifies about the SOC must practice in the same area of medicine as that of the defendant. For example, where negligence is alleged against an anesthesiologist, an expert witness testifying about the SOC also must be an anesthesiologist. Similarly, when a defendant is board-certified, indicating the defendant has been recognized for his or her expertise, an expert witness also must be board-certified. SOC experts can rely upon a variety of sources of information to support their opinions. Usually, it is some kind of medical literature, like an article, textbook or published policy.
A plaintiff must have a SOC expert witness testify that, more likely than not, the defendant fell below the SOC. This is called the plaintiff’s burden of proof. A plaintiff may only call one expert to testify that a defendant fell below the SOC.
The defendant has no burden of proof and, therefore, is not required to have SOC expert witness testify that he or she met the SOC, but almost always will. In addition, a defendant may also testify as an expert witness that he or she met the SOC. One expert for the plaintiff versus two for the defendant gives the defendant an advantage.
Proving that a defendant failed to comply with the SOC can be difficult. Defendants often take the position that there is more than one reasonable approach to treat a medical condition. And, there usually is. Therefore, just because a defendant handled a situation differently from the way the plaintiff’s SOC expert says it should have been handled does not mean the defendant was negligent.
In addition, jurors’ decisions are usually based on what position sounds more reasonable or which expert witness they find more trustworthy. This is true of all experts. Therefore, when the experts are evenly matched and the jurors can’t decide whom to believe, the jury will usually conclude that the plaintiff failed to meet the burden of proof the defendant will win. Therefore, it is exceedingly important to have strong SOC expert testimony, as well as a sensible and easy to understand explanation of what went wrong. Our firm has excellent relationships with SOC experts across a wide variety of practice areas.
