Strong Malpractice Case

It is most important that a plaintiff's medical malpractice lawyer screen cases and accept only those that are worthwhile. (In some states, the lawyer must certify that he has reviewed the matter with a qualified physician who states that the case is "meritorious.") Often the experienced lawyer can tell if the case is worthwhile from the first contact with the client. If it is not, the client should be informed immediately; the legal and medical systems should not be cluttered with the prosecution of worthless malpractice cases.

True medical malpractice consists of negligent conduct that causes damage. There may be "malpractice" from a theoretical point of view, but if the conduct has not caused injury it is not a matter for the legal system. Sometimes there may be true "malpractice" but no residual damage. These are not strong malpractice cases. Juries are not all interested in a past history of damage; they do become interested when a plaintiff can show permanent injury. (1) The following are examples of such malpractice cases.


A patient underwent surgery with Halothane (fluothane) as the anesthetic agent, even though he had suffered previous biliary tract disease, which made the use of this anesthetic contraindicated. The patient died as a result of liver necrosis due to the effects of the anesthetic.A trainee anesthesiologist ran out of oxygen before the operation was completed, causing the patient to suffer a fatal cardiac arrest.A patient who underwent surgery for the repair of a pilonidal cyst under epidural anesthesia ended up with permanent uncontrolled movement of the lower malpractice extremities.


A patient underwent angiography (dye study of the arteries). The procedure was improperly performed, and the patient suffered brain damage due to malpractice.

Burn treatment

A patient suffering from severe third-degree burns received inadequate and improper "burn therapy."


A child was born with a blood problem-Rh incompatibility-antibodies developed by the mother were destroying the blood in the baby. The attending physicians and hospital personnel failed to detect the child's condition. Malpractice.

A mother who was a diabetic gave birth to a child suffering from "large baby snydrome," and proper care was not excercised in delivering the child. The baby suffered a shoulder-brachial plexus injury.A newborn baby with a metabolic disorder was malpractice diagnosed and monitored by the attending physician and hospital nurses. The child suffered permanent brain damage.A pregnant patient was improperly evaluated and monitored during pregnancy and labor; a difficult delivery ensued, and the baby was born with permanent brain damage.

A patient in labor suffered prolapse of the cord. An emergency Cesarean section was delayed, and the baby suffered permanent brain damage.A patient's obstetrician was twenty minutes late, and delivery room nurses had to deliver her child. Then, although the infant was suffering from respiratory distress, a pediatrician was not called for several hours. The child is brain-damaged and requires life-long care. (See Ý6.4 herein.)

Diabetes uncontrolled

An attending physician failed to control a patient's diabetes and potassium deficiency; the patient died. Diagnostic ERCP - Negligent injection of dyDuring an endoscopic retrograde cholangiopancreatography (ERCP), an inexperienced nurse injected the dye too forcefully and caused the patient to develop pancreatitis and other debilitating injuries. (See Ý4.3 herein.)

Diet error

An accident victim's operation to repair a skull fracture was delayed twenty-four hours because the patient was fed a regular diet by nursing personnel, despite a physician's order that the patient was to receive nothing by mouth. The patient suffered permanent brain damage.

Drug addiction
A patient underwent unnecessary surgery that resulted in severe pain for which addictive medication was prescribed. The patient became a drug addict due to malpractice.

Drug reaction

A patient with a minor infection repeatedly was given sulfa medication without proper indication and malpractice. The patient suffered Stevens-Johnson syndrome and permanent eye damage.

Errors in diagnosis generally

A child swallowed foreign metal material, and the attending physician failed to diagnose the trouble due to malpractice. The child died.A child ingested an alkaline solution and at the hospital emergency room the physician used the wrong antidote. The child suffered permanent esophageal injury.A child was born with congenitally dislocated hips, but the attending obstetrician and pediatrician failed to diagnose the condition. There was permanent disability.A patient suffered from cancer, but the attending physician failed to diagnose the disease. The cancer spread and the patient died.A patient ingested insecticide. His physician incorrectly diagnosed his condition, and failed to administer the proper antidote. The outcome was permanent brain damage.A patient suffered from ulcerative colitis of the sigmoid colon. His attending physicians failed to perform a sigmoidoscope examination, and the condition progressed, finally requiring removal of a large part of the colon.A patient suffering from appendicitis was misdiagnosed; the appendix ruptured, and the patient developed fatal peritonitis due to malpractice.A woman had a cancerous condition of the leg, but an inaccurate diagnosis was made, and the patient was subjected to heat and ultrasonic treatments. The cancer spread and the patient died.A patient who fell was taken to the hospital emergency room where a diagnosis of inebriation was made. The patient actually had a fractured spine and a severed spinal cord. The result was permanent paraplegia.

Following surgery, a patient complained of difficulty in swallowing and pain in his throat. His neurosurgeon mistook the symptoms for a sore throat and did not come to see him. The patient died the next day from aspirating vomit. (See Ý9.5 herein.)An on-call ophthalmologist, without seeing the patient, diagnosed his eye pain, sensitivity to light, and nausea as sinusitis, when in fact it was acute angle closure glaucoma. The patient lost sight in the eye due to malpractice. (See Ý14.2 herein.)A urologist who visually inspected and palpated a patient's suspected testicle tumor by surgically pulling it up through the inguinal canal concluded that it was only an inflammatory process when in fact it was malignant. (See Ý17.4 herein.)

Experimental therapy

A patient complaining of low back pain received an injection of an experimental enzyme into a vertebral disc, causing a neurological deficit.An experimental implantation of a muscle in the spinal cord resulted in quadriplegia.Fractures due to malpractice
A patient suffered a fracture of the forearm that was improperly set, resulting in Volkmann's contracture and permanent disability.Even though a patient with a hip fracture was under a physician's care, X-rays of the hip were not made for nine days, during which time the patient was allowed to walk. The patient suffered severe narrowing of the hip joint and permanent disability due to malpractice.

Heart surgery

A patient with coarctation of the aorta underwent surgical repair, but the heart-lung by-pass machine was not in operation, and the patient suffered nerve damage and paraplegia due to malpractice.A patient underwent an unnecessary heart catheterization and developed a blood clot in the leg that was improperly evaluated. The patient suffered permanent disability due to malpractice.

Hemorrhage uncontrolled

A patient suffered from hemorrhage of esophageal varices. He was not given prompt and adequate treatment, and he died.A patient was admitted to a hospital for minor surgery and was allowed to suffer from an uncontrolled nose bleed, causing shock and irreversible brain damage due to malpractice.

Medication inadequate

A child suffering from meningitis was sent home with a prescription that was inadequate and inappropriate. The disease progressed, and the child suffered permanent brain damage. Pap smear not followed-uA Pap smear taken from a patient who was complaining of vaginal bleeding showed "extremely suspicious cells," but her HMO gynecologist did not follow up with a later test, and her cervical cancer was not diagnosed for another two years. Also, the laboratory report was insufficient. (See Ý16.3.)

Spinal surgery

A patient complained of low back pain and underwent removal of a disc. There was nerve injury, causing the patient severe pain. Thereafter he had to undergo various operations on the spinal cord, all of which were unsuccessful.A patient was injured in a serious automobile accident and underwent back surgery. A tear in the dura was not diagnosed, and the patient developed meningitis and died.A patient underwent low back surgery for the removal of a disc. During the approach, an instrument accidentally went through the spinal canal and into the patient's abdominal cavity. A major blood vessel was lacerated, which almost took the patient's life.A patient underwent low back surgery following a minor fall. There was no objective medical evidence whatsoever to justify surgical intervention. The patient suffered emotional and physical disability, and attempted suicide.A patient undergoing a cervical laminectomy suffered from a preexisting osteophytic condition that contraindicated extension or flexion of his head or neck more than ten to twelve degrees. The nurse anesthetist who intubated and anesthetized him was never told of this condition. Following the operation, the patient awoke from the anesthetic a quadriplegic. (See Ý1.2 herein).During an elective lumbar laminectomy, an orthopaedic surgeon caused a tear in the dura that resulted in a complete evacuation of cerebrospinal fluid, which in turn caused a brainstem herniation and death. (See Ý8.6 herein.)

Stomach surgery

A patient underwent surgery for removal of a portion of the stomach. Anastomosis (joinder of parts) failed, and the patient required further surgery with prolonged disability.Unnecessary stomach surgery was improperly performed, requiring three additional major operations, and a prolonged period of disability.A patient underwent surgery for the repair of a duodenal ulcer. He suffered duct damage during the procedure, and required four additional operations. He was permanently disabled.

Treatment delayed when patient not accepted

An attending physician failed to diagnose coronary occlusion and the patient was not hospitalized. When the patient's condition deteriorated, and he finally was ordered into a hospital, the hospital refused to accept him. He was transferred to another hospital but did not survive. Ý 25.6 Fee arrangement-Advancing costs.Most medical malpractice cases for the plaintiff are handled on a contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the recovery after costs are deducted "off the top."Medical malpractice cases are such that usually there will be no settlement, nor even negotiations toward settlement, until the lawsuit has been filed and all essential depositions have been taken. In most well-prepared cases, there is virtually a trial through the discovery process before the actual trial in court. Therefore, "sliding scale" contingent fees (i.e., 25% before the suit is filed, 331/3/% after the suit is filed, 40% if the case goes to trial, 50% if the case goes on appeal, etc.) are not in vogue. But, of course, this is a matter of individual negotiation between you and your client, and should be in accordance with your local custom and practice. Some states now have statutes limiting contingent fees in medical malpractice cases. 2After the first interview with your client, you may deem it necessary to have him or her sign a contingent fee agreement, subject, of course, to your right to withdraw should you find the case unmeritorious after additional investigation.This fee agreement may provide, if permissible in your jurisdiction, that you have the right to advance costs on behalf of the client (and the right to be reimbursed). Ordinarily, the victim of medical malpractice has been plunged into a financial abyss, and is unable to undertake the cost of the investigation and prosecution of the case. The matter will move much more expeditiously if you are in a position to advance the necessary expense of investigation and litigation. These advances usually do not include any sums for medical care and treatment, however, and are limited to the necessary expenses for medical reviews and examinations, and costs of investigation, depositions and the like.

Source: Excerpted from Medical Malpractice, Third Edition, Ý 25 by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution orrepublication without prior permission from the publisher.

Legal Malpractice

Legal malpractice is the term for negligence by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make. Furthermore, legal malpractice requires a showing of an injury that would not have happened unless the attorney had not been negligent. If the injury might have occurred despite different actions by the attorney, no cause of action will be permitted.
A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing a paper with the court, and this error is dispositive of the case.
There exists a community of lawyers within the larger legal community whose entire practice consists of representing plaintiffs in legal malpractice cases.

Source: Wikipedia

Medical Malpractice

Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. More than 4000 years ago, the Babylonian king Hammurabi promulgated a law that provided that a physician whose patient lost an eye as a consequence of surgery should himself lose his hand. Ancient Egyptians and the Roman empire had statutes providing for banishment or death as the physician's penalty for malpractice. Civil War accounts reported surgeons refusing to perform certain procedures for fear of litigation. In the United States and other countries, a specific medical malpractice law has developed. In English law, the issue of liability is a subset of professional negligence where, under the Bolam Test, a doctor will be liable unless shown to have acted in accordance with a reasonable body of medical opinion. In Australia, this test has been replaced but the principles are comparable. In recent years doctors have blamed these types of lawsuits for large rate increases in medical malpractice insurance, resulting in calls from some groups for tort reform.

The medical malpractice claim

The parties

The plaintiff is the patient, a legally designated party acting on behalf of the patient, or by the executor or administrator of a deceased patient's estate (in the case of a wrongful death suit).
The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. Relying on vicarious liability, claims may also be brought against hospitals, clinics, or medical corporations for the mistakes of their employees.

Elements of the case

A plaintiff must establish all four of the following elements, for a successful medical malpractice claim.
A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
A duty was breached and failed and the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitor or 'the thing speaks for itself'). An exceptions to this rule requiring expert testimony is included the concept of abandonment, an allegation where a physician stopped treating an established patiewnt without providing a substitute equally skilled and trained or without providing adequate notice for the patient to find alternate care without risk
The breach caused an injury -- The breach of duty was a proximate cause of the injury.
Damages -- Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

The trial

Like all other tort cases, the plaintiff (or the plaintiff's attorney) files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties (or their attorneys) are required to 'share information' through a process known as discovery. Such information includes interrogatories, requests for documents, and depositions. If both parties agree, the case may be settled early on negotiated terms. If the parties cannot agree, the case will proceed to trial.
The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible.
The factfinder will render a verdict for the prevailing party, and asseses the compensatory and punitive damages, within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. A plaintiff who is dissatisfied by a small judgment may move for additur. A defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.

Expert testimony

That medical malpractice must be judged by the testimony of medical practitioners is a rule dating back to the 16th century. Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified "just because somebody with a diploma says it is so" (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliabilty. In the United States, two models for evaluating the proposed testimony are used:
The more common (and some believe more reliable) approach used by all federal courts and most state courts is the 'gatekeeper' model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]. Before the trial, a Daubert hearingwill take place before the judge (without the jury). The trial court judge must consider evidence presented to determine whether an expert's "testimony rests on a reliable foundation and is relevant to the task at hand." (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:

Whether a "theory or technique . . . can be (and has been) tested"
Whether it "has been subjected to peer review and publication".
Whether, in respect to a particular technique, there is a high "known or potential rate of error"
Whether there are "standards controlling the technique's operation".

Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule's incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.

Statistics on malpractice and preventable medical error

Medical malpractice claims can help identify areas where primary health care in the United States needs improvement, according to the American Academy of Family Physicians. The Academy refers to a study entitled "Learning from Malpractice Claims about Negligent, Adverse Events in Primary Care in the United States", in suggesting that the medical community can learn from tort claims. In that study, researchers looked at primary care malpractice claims settled between 1985 and 2000 in the United States. The study focused on a subset of 5,921 claims that were clear errors. The researchers found:

  • 68 percent of the errors were in outpatient settings and resulted in more than 1,200 deaths.
  • Negligence was more likely to have severe outcomes when they occurred in hospitals, but the total number of high severity outcomes and death was larger in the outpatient setting.
  • Of the 10 most prevalent medical conditions with error-related claims, no single condition accounted for more than five percent of all negligent claims.
  • Diagnostic error accounted for more than one-third of the claims.

A recent study by Heathgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic.

A 2006 follow-up to the 1999 Institute of Medicine of the National Academies study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million -- and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.

Criticism of medical malpractice resolution

The process for adjucating medical malpractice lawsuits in the United States has been criticised for providing an expensive, adversarial, unpredictable, and inefficient settlement system. Both insurance companies and Physicians have argued that excessive verdicts in medical malpractice lawsuits are in part responsible for the increasing medical malpractice insurance rates. These groups point to examples where rate increases are causing doctors to go out of business or have moved to states where more favorable tort systems exist.

A 2003 report from the General Accounting Office identified multiple reasons for these rate increases, one of which one was indeed costs associated with malpractice lawsuits. The average increase in malpractice premiums in that same year ranged from 15 to 30 percent in most states, depending on the location and medical specialty. These drastic increases in malpractice insurance rates have resulted in doctors striking in West Virginia, the temporary closings of hospital services (e.g., the trauma care center at the University of Nevada Medical Center), the reduction or elimination of physicians performing high-risk services, and the early retirement of some physicians to pursue other fields. An estimated 60% of malpractice lawsuit expenses are consumed by administrative, or transaction, costs (eg, lawyer fees, expert witness charges, court costs), as compared with 25% to 30% for systems such as workers' compensation. Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000. That number has held steady since then, dropping briefly in the wake of the Sept. 11 terrorist attacks.

A number of groups are actively involved in the issue of tort reform with regards to medical malpractice. For example, Common Good has proposed creating specialized medical courts (similar to existing administrative tax or workmen's comp court proceedings) where medically-trained judges would evaluate cases and subsequently render precedent-setting decisions. Proponents believe that giving up jury trials and scheduling noneconomic damages such as pain and suffering would lead to more people being compensated, and to their receiving their money sooner. While this proposal has been criticised by some as depriving Americans of their right to a trial by jury, a number of groups have supported this proposal, including he AMA, and the American College of Surgeons, the National Law Journal, Forbes magazine, and the USA Today and Wall Street Journal editorial pages. Other tort reform proposals, some of which have been enacted in various states, include placing limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates.

Malpractice - basics

In law, malpractice is type of tort in which the misfeasance, malfeasance or nonfeasance of a professional, under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers damages. It is committed by a professional or her/his subordinates or agents on behalf of a client or patient that causes damages to the client or patient. Perhaps the most publicized forms are medical malpractice and legal malpractice by medical practitioners and lawyers respectively, though malpractice suits against accountants (Arthur Andersen) and investment advisors (Merrill Lynch) have been in the news more recently.

Source: Wikipedia