MEDICAL MALPRACTICE CASES: AN OVERVIEW OF THE CHALLENGING LANDSCAPE

Contrary to what you may hear in the media today, medical malpractice claims always have been, and continue to be, extremely difficult to pursue. Why? There are a number of reasons which I will discuss below. A note on terminology first: while the article applies to "medical providers" generally (i.e. physicians, nurses, dentists, etc.) I will speak largely in terms of "doctors" for ease of reference.

One major reason why these cases are difficult to pursue in the State of Georgia is that, prior to filing suit, a claimant must secure the affidavit of another medical provider from the same discipline as the defendant provider who testifies in the affidavit that the defendant was negligent. This is a tall order. (Only civil cases against professionals have this affidavit requirement.) As you might expect, most physicians are reluctant to testify against other physicians in their locality. It is bad for business. A vocal critic is apt to be viewed by his peers as fanning the flames of malpractice litigation, an industry which doctors perceive to be one of their worst enemies. The old adage of "what goes around comes around" also comes to mind; the thought is that if a doctor helps someone sue a colleague then that colleague may later help someone sue the doctor who testified. The net result is what has often been referred to as the "Code of Silence." While physicians are eager to testify in defense of claims lodged against their colleagues, it is rare to find one willing to go on record against a defendant in his or her locality.

How can a claimant overcome this hurdle? The prevailing practice is for counsel to hire an "expert" physician from out-of-state to evaluate a potential case and then testify if he or she is of the opinion that malpractice has occurred. Such experts typically charge substantial fees to simply evaluate a case, with on-going fees of like measure if they are willing to testify in the case. While some medical providers undoubtedly make substantial income as professional witnesses, lawyers are motivated to avoid "sleazy" experts whose credibility can be challenged. Experienced lawyers look for experts with superior credentials and solid experience who do not always testify for claimants, so that the expert's testimony will be credible and less subject to attack by the defense. The downside here is that reputable experts often respond that claims which may appear to the lawyer to be meritorious are, in fact, not meritorious at all. When this occurs, the lawyer will have spent thousands of dollars on his expert, not to mention many hours of his or her own time, with nothing to show for it.

Another factor making malpractice cases difficult to pursue is that doctors do not like to admit to errors that may be perceived as tarnishing their reputations. Further, their insurance policies (unlike most liability policies) typically require the doctor's permission before the insurer is allowed to make an offer to issue a payment to settle the case. With auto policies, for example, the insurer does not need the insured's consent to settle. In cases where the doctor refuses to consent, a trial is required.

Which brings us to another reason why these cases are difficult to pursue. The dynamics of a medical malpractice trial are usually skewed in favor of the physician. Defendants must be sued in their county of residence, so malpractice cases are litigated in counties where the physician is apt to be known to the jurors, if not personally at least by reputation. Juries will naturally be reluctant to find against a local provider who may have helped family members or acquaintances over the years. Adding to this difficulty is that the key witness for the plaintiff is the out-of-state expert with the funny accent who may appear on videotape. Also, it is not unusual for physicians with practice groups to have all of its members parade into the courtroom in their white coats to sit behind the defendant physician in a show of support.

Added to this already troubling dynamic is the argument that can be made in nearly every case: the human body is unpredictable, medicine is not an exact science, the doctor did his best and, though the patient may have had a bad result, it is not the doctor's fault. Proximate cause is usually an issue as well. The argument made on this point is that the claimed mistake has not been proven as the cause of the claimed injury. Patients often have prior health issues or conditions which make causation a debatable proposition.

Are you getting the picture? The ramifications of this difficulty in pursuing claims are quite significant for the would-be claimant. For one thing, lawyers will not be able to take "small" cases where a major, usually permanent injury has not occurred. Lawyers may need to invest ten, fifty or more thousands of dollars to prosecute a case, money coming out of the lawyer's pocket, money which is truly at risk of being lost. One example: many lawyers are unwilling to take cases where a sponge is left inside the patient after surgery. Though liability is clear, the value of such a claim may be in the $75,000 range, not enough to warrant the required investment of money and time.

Another ramification is that the contingency fee rate to hire counsel for these cases is high compared to other claims, due to the risk of an unsuccessful result coupled with the high degree of legal expertise required. My experience is that contingency fees for such cases are in the 40-45% range, perhaps more.

Something else to consider: this is a specialized type of claim that requires a specialized lawyer. There are many technical requirements to successfully litigate these cases which can be a minefield for the general practitioner. Make sure your counsel has experience with this type of claim.

Copyright 2004 by David L. Turner, Esq. All rights reserved. For more information contact the author dlt@swtlaw.com or call 404-688-6800.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE ABOUT A SPECIFIC LEGAL MATTER CONTACT COUNSEL OF YOUR CHOOSING.