Why Are Medical Malpractice Cases Difficult To Win?
If you think you have been a victim of medical malpractice, you may think of malpractice as simply being just another type of personal injury case, and you could believe that just any personal injury attorney can handle your malpractice case. But that isn’t the case. In fact, malpractice cases can be very difficult to win, for a number of reasons.
Bear in mind, none of this means that you shouldn’t seek out legal advice, if you think you have been a victim of malpractice. It simply means that when looking for an attorney, you should make sure that the attorney you are speaking to has experience in medical malpractice cases.
Reasonable Care?
Normally, in malpractice cases, we would ask whether someone acted with reasonable care or prudence, or whether they acted in a way that someone in a similar situation would act.
But in malpractice cases, to show that the doctor is liable for your injuries, you have to show that he or she did not live up to the standard of care that a comparable physician, in the same medical field, would have practiced. In other words, we are comparing your doctor to other doctors—a much more difficult standard to meet.
Not an Exact Science
The other difficulty in malpractice cases is that although we think of malpractice as a science, and of course, to some extent it is, it is not a precise science or an exact one. There are many ways to accomplish the same medical goals, and many uncertainties about medicine that we simply don’t know yet.
That means that if you don’t get the medical result that you are looking for—or worse, if you end up in poorer condition—it could certainly be the result of malpractice—but that doesn’t mean that it always is.
Causation Difficulties
Causation is also an issue in malpractice. For example, assume that someone sees a doctor, and the doctor misdiagnoses (that is, misses the diagnoses) of a cancer. Later, the patient dies of that cancer. Did the misdiagnosis cause the cancer? Or was the cancer so far along by the time the doctor saw it, that even in light of a perfect diagnosis by the doctor, the patient still would have passed away?
Causation can be particularly difficult with older patients, who may have multiple or underlying health conditions that contribute to the negative medical outcome.
Juror Bias
Another difficulty in medical malpractice cases is that many jurors have an inherent trust in doctors. Yes, this is somewhat warranted; many doctors are highly skilled and respected. But going into a malpractice trial, your attorney will have to fight against the assumption that many law people tend to make, that doctors are always right.
One way that can be done, is when your attorney hires his or her own doctor to testify as an expert. Jurors will then determine which physician is the more credible one.
Have you been a victim of negligence or malpractice by a doctor? We can help. Contact us today. Call our Boston personal injury lawyers at The Law Office of Joseph Linnehan, Jr. today at 617-275-4200.
Source
natlawreview.com/article/medical-malpractice-causation-often-most-difficult-element-to-prove
