Medical malpractice lawsuits have the same burden of proof as other civil lawsuits. The injury victim has to show that “by a preponderance of the evidence,” they meet the elements of the claim. This means it is more likely than not (more than 50%) that elements of a malpractice case have been met. However, because there may be a lot at stake, the hospital or doctor may put up a stronger fight against the injury victim compared to other types of injury cases.
To understand how hard a malpractice case is to win, it is important to know how to win a case. Each malpractice claim is different and the only way to get a full evaluation is to talk to an experienced medical malpractice attorney who understands cases just like yours. If you want to know if you have a medical malpractice case or how much your case may be worth, contact Gilman and Bedigian for advice. Contact our office today online or by phone at 800-529-6162.
Medical Malpractice Settlements and Jury Trial Wins
Medical malpractice lawsuits can take a long time between the initial filing and the jury trial. What the injury victim considers a win would generally be a trial where the jury finds in favor of the plaintiff and awards compensation for injuries. Another type of win could be a good settlement offer. A settlement is where both parties agree to settle the case for a certain amount of money.
The reality is that the majority of malpractice cases settle before they go to trial. There are several reasons why cases settle and it can be the best outcome for all parties involved to settle the case for a known settlement amount instead of taking a chance at trial. Trials can be long and costly. They can also be stressful for the injury victim who may have to relive their injury experience before the court. A settlement for a fair amount can ensure you get compensated without having to go through a trial.
According to government statistics, the further the case goes through the legal process the higher the insurance settlement payment. For example, cases settled at the initial filings are lower than those settled at or just before trial. The further the case goes along, the more the insurance company will be looking to settle because claims closed after trial cost the insurance companies more to defend. About 95% of medical malpractice insurance claims are settled before trial.
Your attorney can negotiate to get you the settlement award that you deserve. It is important to know that the decision to settle or not is up to you. Your attorney can’t accept a settlement amount if you don’t agree. Your attorney is your advocate but you are still in control of whether to accept the settlement or continue with your claim. If you have questions about whether you should settle your case or go to trial, talk to your medical malpractice attorney.
Medical Malpractice Lawsuit Statistics
According to a survey from the American Medical Association, the frequency of medical liability claims can depend on the area of specialization. According to the American Board of Medical Specialties (ABMS), there are hundreds of recognized specialties and subspecialties in medicine. The percentage of doctors sued for malpractice based on the area of specialization includes:
- Anesthesiology: 36%
- Emergency medicine: 52%
- Family practice: 33%
- General surgery: 63%
- Internal medicine: 32%
- Internal medicine subspecialties: 26%
- OB/GYN: 64%
- Pediatrics: 18%
- Psychiatry: 16%
- Radiology: 38%
- Surgical subspecialties: 47%
- Other specialties: 20%
According to a report from the U.S. Department of Justice, most medical malpractice cases are closed without any compensation to the injury victim. However, more than 10% of claims against physicians and surgeons have settlements of $1 million or more. For example, in Illinois, claims against physicians and surgeons, the percent distribution of insurance payouts is as follows:
- Under $100,000: 20.6%
- $100,000 to $249,999: 18.7%
- $250,000 to $999,999: 43.7%
- $1 million or more: 17.1%
This means the majority of settlements against physicians and surgeons in Illinois are for $250,000 or more. These statistics were for malpractice insurance claims settled from 2000 to 2004. With inflation, the current settlement amounts are likely much higher. Payouts are highest for injury victims who suffered lifelong major or grave permanent injuries.
Why Are So Many Doctors Involved in Malpractice Cases?
According to a survey from the American Medical Association, 34% of doctors surveyed have been sued for medical liability claims. Almost 17% of doctors have been sued 2 or more times. Doctors in solo practice are more likely to be sued than doctors in multi-specialty groups or direct hospital employees.
Medical malpractice lawsuits against doctors are not rare. However, it is important to understand how malpractice cases are handled to understand why so many doctors are named in lawsuits. Under the American legal system, there are reasons why a malpractice lawsuit casts a wide net before being narrowed down to the parties involved.
When the plaintiff (person filing the lawsuit)first files the legal complaint, it generally names all parties involved in the medical treatment, even those who may not be directly responsible for any injuries. This is because if it later turns out that someone was not named in the lawsuit but had some role in negligent care, it may be too late to add them to the case. This is why the initial filings have more parties named that will eventually be involved in the case.
This is a standard practice in medical malpractice and this is why so many doctors are sued even if the claims against them are later dropped. For example, if a patient suffered an injury during surgery that was caused by medical malpractice, the lawsuit may include as defendants the head surgeon, additional surgeons, anesthesiologist, nurses, other healthcare providers, and the hospital or clinic.
During the discovery phase of the lawsuit, when information is exchanged, it may become more clear who was involved in the negligent care and the other providers who were not negligent can be dismissed from the case. Eventually, the case comes down to direct claims of medical malpractice against one or more doctors or healthcare providers.
What Do You Need to Do to Win a Malpractice Case?
Medical malpractice is a type of professional negligence. To win a medical malpractice case, you need to prove all the elements of the claim by a preponderance of the evidence. When a jury decides a medical malpractice case, they will look at each element and decide whether or not you showed that it was more likely than not that the element is met. The elements you have to prove include:
A duty of care is owed to a patient by their doctor. Your doctor has a duty to provide care that meets medical standards. The standard of care is based on the medical community where the care was provided. This means the medical standards may be different for someone in a big city compared to someone in a rural area without many healthcare resources.
A doctor breaches the standard of care if they deviate from standard medical practices. A breach could be doing something other reasonable doctors would not do or not doing something that a reasonable doctor would do. This could include deviations like:
- Failing to get a specialist consultation
- Failing to order diagnostic tests
- Failing to prescribe a type of medication
- Discharging a patient who should be admitted to the hospital
- Delaying treatment
- Delayed delivery during labor
- Not following surgical procedures
- Failure to monitor a patient under anesthesia
Causation means that there is a direct link between the doctor’s negligence and the patient’s injury. The doctor’s actions (or inactions) generally have to be a foreseeable and proximate cause of the patient’s injuries. Finally, the patient has to show they suffered some harm as a result. Harm can include additional medical treatment, additional time in the hospital, or even lost time from going to work.
Using a Medical Expert to Win a Medical Malpractice Case
Medical standards and causation can be the most contested elements to prove in a malpractice case. For example, in a car accident lawsuit, the average juror understands how to drive a car and can decide for themselves whether another driver’s actions were negligent. However, with medical negligence, the average person is not familiar with medical standards. This is why medical malpractice lawsuits use medical experts.
Under state rules of evidence “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
- The expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
- The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
- The expert’s methodology is generally accepted in the relevant field.”
A medical expert is used in medical malpractice cases to evaluate the doctor’s actions and come up with an opinion on whether the doctor’s actions deviated from medical standards or not. Even at the beginning of a lawsuit after the complaint is filed, many states require a certification from a doctor that the case has merit. The medical expert can also testify to the jury about the case and help the jury understand how the doctor deviated from the standards of medical care.
Role of the Medical Defense Attorneys
In a medical malpractice case, there are two sides. The plaintiff is the person who files the lawsuit, generally the injury victim or their family. The defendants are the parties responding to the claim, generally the doctors, healthcare professionals, nurses, or hospitals. In a medical malpractice lawsuit, each side is trying to win or eventually come to a settlement.
The role of the medical malpractice defense attorneys is to advocate for their clients. It can be confusing because the lawyers are generally the clients of the insurance companies. Doctors carry medical malpractice insurance that provides representation and compensation in the event the doctor is found liable for malpractice. When a claim is filed against a doctor, the malpractice insurance company steps in to handle the case.
After a lawsuit is filed, the insurance company’s lawyers will generally try to avoid any liability or get as low a settlement as possible. Alternatively, the patient’s lawyer will try to win the case and get as high a settlement as possible. The plaintiff’s lawyer will get medical experts to support their case and the defense attorneys will get medical experts who disagree with the other experts. In the end, it is up to the jury to decide who they believe and whether the injury victim has proven their case.
Does Settling the Case Count as a Win?
The vast majority of medical malpractice lawsuits are settled without going to trial. A settlement is often the best outcome for the injury victim and the negligent doctor. When a case first starts out, settlement offers are generally lower because all the evidence has not come out. After months (or sometimes years) of exchanging testimony, depositions, evidence, medical records, and other information, the case may become more clear. Often, medical malpractice cases settle just before trial when each side has a better idea of what might be at stake.
A settlement can be beneficial for the injury victim because they will receive a known award for their losses. If the case went to trial, there is always a chance that the jury will disagree and the injury victim will recover nothing. A guaranteed award can help the injury victim recover their damages without risking the unknown outcome of a trial.
Medical Malpractice Law Firm With Proven Record of Success
Experienced trial attorneys understand how to win medical malpractice cases and get the best results for their clients. Experienced lawyers like H. Briggs Bedigian and Charles Gilman have a strong reputation in the medical malpractice legal community. Our attorneys have won a number of jury verdicts of over one million dollars, including 3 jury verdicts of over $20 million and a $55 million award in a birth injury case.
To understand how you can win your malpractice case, contact an experienced medical malpractice law firm for legal advice about your rights. A medical malpractice attorney can review your case and help you understand the basics of winning a medical malpractice claim. With an experienced attorney on your side, you can recover the maximum damages for your injuries. Contact a law firm that handles medical malpractice cases like yours. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.