Medical Malpractice Suit
Depending on the state in which the complaint was filed, the expert medical witness may be either a generalist, or a specialist in the field of medicine involved in the lawsuit. Each state has laws governing the extent of specialty required by an expert witness in a medical malpractice case. In addition to establishing negligence, the expert witness must also determine if, and how the negligence lead to additional undue injury or damages to the patient. If the expert medical witnesses both find that the medically accepted standard of care was not breached, and negligence had not taken place, then the lawsuit will likely be dismissed. If both experts disagree, then more witnesses may need to be called upon. If the medical experts both agree that negligence likely occurred, then the lawsuit will proceed. Negotiating a Settlement If it is established, through the discovery period and medical expert opinion, that the case has merit, then the defense will likely begin their attempts to settle the case out of court.
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Instead, Boothman says, lawsuits usually are the result of injured patients or their families wanting to find out what went wrong, who was responsible for it, and to see that it doesn't happen to others. With that in mind, what can doctors-particularly those in primary care-do to reduce their legal exposure? Strive for trusting, open relationships A good place to start, according to those with experience in malpractice cases, is to establish trusting and open relationships with patients. That, in turn, requires two things: good communication skills, and lots of face time with patients. Fred Cummings, JD, a malpractice attorney with Dickinson Wright in Phoenix, Ariz., says that a significant motivator among many of his clients is the feeling that their doctor didn't spend enough time with them, or wasn't really listening when they described their health problems. Moreover, without a trusting relationship patients are less likely to reveal personal information, such as drug use or sexual activity, that their doctor needs to properly diagnose and treat them, says Darrell Ranum, JD, vice president of patient safety and risk management for The Doctors Company, a medical malpractice insurer.
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These statistics must make for extremely sobering reading for anyone contemplating a medical-malpractice lawsuit. Meanwhile, McIver will be speaking on Saturday, April 13, at a patient-safety symposium in Toronto. The event, which is being held at the Ontario Bar Association, 20 Toronto St., will bring together experts on the topic of medical errors and how patients can deal with them. It is open to the public, although space is limited. Visit for details.
Accurately diagnosing a patient can be especially challenging for primary care doctors because of the wide range of medical problems they encounter, Ranum says. The largest category of patient allegations in The Doctors Company study-39 percent-were diagnosis-related. That means physicians have to be careful to follow a differential diagnosis process, and document that they have done so. "If the physician's diagnosis is questioned at some point in the future, and the documentation reflects a thoughtful and systemic approach to arriving at a diagnosis, then the doctor is more likely to be seen as being reasonable in their approach rather than negligent for missing a diagnosis, " Ranum says. The role of practice culture Boothman notes that a practice or organization's culture plays an important role in ensuring patient safety and thus the frequency of malpractice suits. "In workplaces where the physician is regarded as captain of the ship and the people around him don't feel empowered to raise concerns about a patient's treatment, that culture can create a higher medical malpractice risk, " he says.
