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In any lawsuit, the object is to render an impartial decision based on the facts presented and the laws germane to that suit. With the prosecution and the defense presenting conflicting interpretations of fact, it is up to the trier of fact (the judge or jury) to determine whose presentation is more compelling. In medical malpractice suits, negligence is the prevailing theory of liability. The plaintiff carries the burden of proof in these cases, meaning they are required to present evidence that the defendant provider was negligent and that this negligent harmed the patient. The defendant provider carries no burden of proof in their case.
Role of a Med Mal Defense Attorney
Therefore, the legal posturing of defendants differs greatly from that of plaintiffs. Furthermore, their lawyers have their own unique duties in a malpractice suit. The defense lawyer’s role is to work to counter the statements and testimony provided by the plaintiff attorney, using their own hand-selected expert witnesses and offering an opposing interpretation of the incidence in question. Both parties are interested in firmly establishing the standard of care (the degree of skill or care reasonably expected by any other competent provider in the same field). Using expert witnesses, both sides construct a picture of the field’s standard of care for the judge or jury. The actions of the plaintiff attorney and the defense attorney bifurcate from this point onward, as it up to the plaintiff attorney to allege that the defendant did deviate from this standard of care with their actions. It is the goal of the defense attorney to show that the defendant did not deviate from this standard of care with their actions.
As in any civil or criminal case, the defense attorney wears many hats. They are at once advocate and adviser to the accused; strategist of the tone and information presented in the defense; researcher of the medical specificities of a claim; and negotiator of the best possible deal for his or her client. Defense lawyers in criminal and civil cases may be public defenders or privately retained defense attorneys. In the case of medical malpractice, the defense attorney is almost uniformly commissioned by the provider’s liability insurance company.
Insurance Company Provided Counsel
Their role is not only to shield the healthcare provider from the negligence claim but to protect the financial interests of the insurance company that covers them. Medical malpractice defense attorneys strive to reach a mutually acceptable agreement or settlement that causes the absolute minimum financial loss for the insurance institution, in turn protecting the career of the medical professional. It is important to remember that the healthcare provider’s career is more of a secondary concern to the defense attorney, their primary concern is curbing the financial loss of the insurance company.
Unlike the plaintiff attorney who works on contingent fees (meaning they are only paid if they win the case,) the defense attorney’s pay is hourly, guaranteed, and funded by a financially well-equipped institution. The plaintiff attorney operates on contingent fees specifically because the patient-plaintiff does not usually have the financial resources readily available to commence litigation. Their attorney will then temporarily foot the bill of the lawsuit until/if a settlement is won or the court awards damages. This effectively ‘opens the courthouse doors’ to plaintiffs who cannot fund the prosecution of their malpractice claim.
While the plaintiff attorney is tasked with proving negligence in a unique claim, a medical malpractice defense attorney may select from a handful of common defenses which can fit a variety of claims. Their role is to poke holes in the case that the prosecution presents. In order to win a malpractice case, the prosecution must establish four essential elements: duty, breach, causation, and damages. If they fail to establish any of these four elements, or the defense successfully disproves one or more of them – the defendant will likely be found not liable.
Potential Medical Malpractice Defenses
Duty is the pre-existing legal relationship between plaintiff and defendant, which establishes that the defendant provider was required to render a certain standard of care to the plaintiff. In the absence of a patient-provider relationship, the provider may not be legally accountable for any injury the patient incurs. If possible, the defense attorney will attempt to poke holes in the assumption of the patient-provider relationship. If care was rendered in an emergency situation, or the provider had never treated the patient before and did not have immediate access to their medical records, the element of ‘duty’ may be successfully questioned.
Defining the standard of care is an obvious prerequisite to establishing that a breach occurred. While the plaintiff attorney will seek out a credible expert to define the standard of care and assert that the defendant deviated from it, the defense attorney will seek out an expert who definitively come to the opposite conclusion. Although the standard of care is sometimes statutorily defined (in certain states), it may be up for debate between contesting professionals, who could disagree on the minutia of the ‘standard.’
Expert Witnesses for the Defense
The defense attorney evaluates expert witnesses on many counts, including but not limited to professional reputation, availability, likability, and ability to deliver compelling testimony. It is easier to recruit a healthcare professional to testify in support of a colleague than it is for them to testify in reproach of one. The expert witness for the plaintiff will claim that a foreseeable breach of duty occurred, which may have been an act or an omission of information.
The defense’s expert witness, with the instruction and advice of the defense, will testify that no such breach occurred – based on their interpretation of the standard of care. Defense attorneys and the liability insurance companies that employ them usually have a ready network of physicians, nurses and medical personnel who aid in the evaluation of claims and the construction of the defense. The third totem of a successful medical malpractice claim is causation or proximate cause – that is to say, showing the direct link between the provider’s alleged negligence and the injury incurred. An act of negligence on its own is not actionable unless is proximate leads to the patient’s injury. If a patient is injured and the provider was negligent but these were discrete events with no connection to one another, then the defendant may not be liable.
Contributory Negligence
This is where defense attorneys may have many opportunities to defend their client. The defense attorney may argue that patient exacerbated or contributed to their own injury via their own negligent actions. They may argue that the harm incurred was a known risk of which they were fully informed before the procedure. Another possible defense is that the patient failed to disclose pertinent information to the provider. Above all, the existence of the injury cannot be disputed. It is the job of the defense attorney to show that the provider was not negligent and the injury would have happened regardless of the presence of negligence, given the extenuating circumstances. The final element, damages, is established by the plaintiff attorney. This is not limited to the patient’s physical injury but reaches to the emotional and financial loss they incurred from the alleged malpractice. The defense attorney has the opportunity to dispute these alleged losses; they may argue that the stated losses were not actually a result of the injury, or that the losses are not the provider’s responsibility because they were not actually negligent.
Defense attorneys have a few select advantages in these cases. Generally speaking, they have the support of the medical community when shopping around for expert witnesses, who may be eager to give testimony to defend a colleague. From the perspective of a medical provider, defense attorneys are ‘on their side.’ According to one expert in the Journal of Vascular Medicine, providing expert testimony for a plaintiff attorney can be likened to ‘sleeping with the enemy,’ a contemptible betrayal of sorts. From the perspective of many medical professionals, by providing the plaintiff attorney with testimony, they are abetting the industry that traffics in uprooting the careers of medical professionals. Conversely, by supplying testimony to a defense attorney, they are abetting the industry whose exclusive function is to defend them against what they perceive as ‘havoc-wreaking’ claims.
Malpractice cases are both a bane of the medical community and a source of great fear. Not only are these claims deeply personal – the provider is accused inflicting great suffering or even death on their patient, their professional judgment is disparaged or denounced, their career is at stake – however necessary to the integrity of the medical system, these suits are also the subject of quiet contempt by healthcare providers. For this reason, plaintiff attorneys may have a more difficult time securing a ready willing and able expert witness, eager to the supply testimony to buoy the negligence claim. Defense attorneys benefit from a positive perception within the medical community, usually being seen in the light of ‘protector,’ and any testimony given might be supplied in the light of empathy for a ‘colleague.’
In addition to the argument of contributory negligence (meaning the patient contributed to or caused their own injury), the defense attorney may exploit a number of other legal defenses. In a post tort reform world, medical malpractice claims are subject to strict statutes of limitations. These vary state to state, but they impose time limits on the various aspects of a claim. The time limit to bring a claim may be 2 years from the conclusion of treatment, for example. A case may be promptly dismissed if the claimant tries to file after this limit has expired. A defense attorney will assuredly file a motion of dismissal if a claim has been brought outside of its statutory limits. Good Samaritans are another possible legal defense which attorneys could exploit. This is mostly applicable in cases of emergency care that was rendered in good faith but which led to a bad result.