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Case Evaluation
Medical malpractice actions are
not like most lawsuits: they are among the most complex, time
consuming and demanding kinds of personal injury litigation; the
injuries are often very serious; professional reputations are at
stake; scientific evidence is often hard to find and almost always
in dispute. In short, medical malpractice litigation is costly.
There
are very few individuals who can afford to pay their lawyers as the case progresses.
In most cases, lawyers must finance
the costs
of the litigation until trial or settlement. In addition, lawyers
must frequently fund other expenses associated with the case
including the cost of medical records, outside experts, trial
exhibits and other expenses, which can added up to tens of thousands of dollars.
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As a result of the significant financial risk to their
firms, lawyers must choose their cases very carefully.
Our Criteria
We consider a number of
factors when evaluating whether to take on a particular case, but
the two most important factors are:
-
Chance of
success; and
-
Likely damages.
If the
case has a good chance of success and we estimate that we can recover
enough to cover the costs of the litigation while still
leaving money to adequately compensate the victim
we will normally consider taking the
case. Whether we then take the case depends on our current case
load.
The initial evaluation of a case can be
time consuming and expensive. Depending on the nature of the case and our initial evaluation, we
may require that you pay part or all of the costs of the
initial investigation.
The Chance of Success
Typically medical
malpractice claims results from mistakes and/or a lack of informed
consent.
Negligence -
Liability for a medical mistake has four important parts to it:
- Duty - Did the
health care provider owe you a duty to be careful? (Typically
established by the doctor-patient relationship)
- Adverse Outcome
- Were you injured or harmed?
- Negligence - Did the physician fail to meet the standard of care
reasonably expected in the circumstances? Or put more simply: Did the health care provider do
something wrong?
- Causation -
Did the mistake lead to the injury or harm?
Informed Consent - Liability
involving a lack of
informed consent
also has two important parts to it:
- Lack of Informed consent
- Did the health care
provider tell you about all of the risks and benefits of a particular procedure?
(Risks include those which are material or those which have serious potential
consequences).
- Causation -
Would a reasonable person in your
position have gone ahead and had the procedure had they been told of the risks and
benefits?
There may be other causes
types of claims that can be advanced depending on the
circumstances.
Negligence
Proving a health care
provider was negligent is typically achieved through the
use of an expert witness. The expert will testify in court as to the appropriate
"standard of care" that should have been exercised and contrast that with what
was actually provided. To prevail a judge must be satisfied that the provider fell below
the applicable standard of care and caused the damage which is
claimed.
Standard of Care
In determining
whether a physician has breached the standard of care,
the Court considers what a reasonable health care
provider in similar circumstances might have done. The
key to the test is reasonableness. This is not a
standard of perfection. The Court determines the
reasonable standard through the evidence of expert
witness. As a result, any successful medical malpractice
case requires one or more supportive opinions.
The standard in any given case will vary depending on the circumstances.
For example, a higher standard may apply where a procedure is elective compared to a
procedure that is performed in an emergency. In an emergency there is little time to
consult other physicians and reflect on the situation. Similarly a health care provider at
a major urban hospital might be held to higher standard than would be the case in a rural
setting.
Since the standard changes depending upon the
circumstances, in most cases, it is initially difficult to determine if any
particular care has fallen below the standard at any given time. To assess this, we retain
one or more expert witnesses (a similarly situated doctor or other provider practicing within
the same specialty), to review the medical records and provide an opinion.
When evaluating this aspect of a case, we
consider whether we can obtain an appropriate, supportive opinion from an expert who will
be willing to testify at trial. If the conclusion is that we cannot, then we will not
accept the case.
Causation
It is not enough to show that a health care
provider’s care fell below the standard. We must also be able to demonstrate that the
failure to meet the standard led to the injury whether physical, economical or both. This
area of medicine is quite complex and is frequently the area of greatest contention in
medical malpractice cases. In some cases, defence experts take the position that nothing
the health care provider did or failed to do led to the bad outcome.
Example: If a physician fails to
diagnose pancreatic cancer (a particularly aggressive and deadly
form of cancer), in a timely fashion, invariably the defence will allege that
the patient would have died, even if treatment had begun earlier.
As with the applicable standard, the issue of
causation is fought almost exclusively with expert witnesses. These witnesses must be able
to convince the court of the link between the malpractice and the damages. The presence of
pre-existing injuries, while not fatal to a case, is always cause for concern.
When evaluating causation, like standard, we
consider whether we can obtain an appropriate, supportive opinion from an expert who will
be willing to testify at trial. If we cannot, we cannot accept the case.
It is very frustrating when a case is turned
down because of a problem with causation. In this case, you have a doctor who has often
clearly made a mistake, but the client is still not able to recover
compensation.
Informed Consent
Another potential cause of action against a
health care provider (normally a physician) relates to the concept known as informed
consent. Except in extraordinary circumstances, consent to a medical procedure must be
informed. That means that for your consent to be valid it must be made after you have been
advised of the material risks and benefits. If you haven’t
given informed consent for the procedure then the physician will be liable and damages
will result.
It is not necessary that you be advised of
rare complications unless they may result in serious injury or death.
There is also a causation component to informed
consent. Even if it is established that a procedure was performed without your informed
consent, there will be no liability if it can be demonstrated that a reasonable person in
your shoes would have consented to the procedure even if they had been
told
about the risks and benefits.
In evaluating claims of this nature we may
employ the assistance of expert consultants to advise as to what risks ought to have been
disclosed but as well, must evaluate the relative credibility of the parties.
Damages
It is an unfortunate fact of life that the costs of bringing a medical
malpractice action can be significant. In some cases these costs can exceed the amount
recovered. As a result, there must be significant damages for a case to be viable. What
constitutes significant in any given case will vary with the potential complexity of the
case.
Typically damages must
exceed at least $100,000.00 to be viable. While we do accept cases
with lower damages, these cases must have unusual merit or social value before we would
consider pursuing them.
Summary
In the end, the final decision as to whether or
not we accept a client depends on each case. Unfortunately, we are
not able to accept every good case. However, if we are unable, for any reason, to accept your
case, we will always provide a referral to other firms.
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