Medical malpractice occurs when a doctor or other medical professional fails to exercise “reasonably skilled and careful” treatment, resulting in a life-changing injury. In response, the pre-trial process of gathering evidence leans toward proving malpractice indeed occurred.
The process tends to be extensive and results in a claim that lasts two years on average. Before the case goes to trial, the following common issues frequently surface:
1. Defining Malpractice?
Just because a surgery or procedure didn’t have a preferred outcome that doesn’t mean malpractice occurred. Instead, to determine it in a legal sense, the following factors have to be proven:
• A doctor-patient relationship. Did the patient “hire” a doctor to perform a specific service? Although this appears straightforward, complications emerge when a consulting physician was involved in but did not directly provide treatment.
• Did the doctor exercise full skill and care? Essentially, the second step to determining negligence is finding out if another skilled medical professional would have provided adequate treatment in similar circumstances, rather than causing harm. Experts almost always have to be consulted in this stage to determine the standard of care and if and how the plaintiff’s doctor failed to meet it. Common situations arising are failure to diagnose, improper treatment, and not warning a patient of the risks.
• Did harm directly occur from the doctor’s actions? A pre-existing condition or sickness may be responsible for a plaintiff’s injury, and before an act of negligence is established, this factor has to be ruled out.
2. Filing
In Connecticut and other states, filing a Certificate or Affidavit of Merit precedes a medical malpractice case. In this process, the plaintiff’s attorney must submit some proof that negligence occurred, with an expert physician’s opinion included and the defendant’s identity kept anonymous.
From here, before a case is allowed to begin, a panel hears arguments and reviews evidence and testimonies. Findings from this pre-trial procedure may be used when the official trial begins.
As well, all states have statute of limitations concerning malpractice cases, with deadlines varying from six months to two years. In Connecticut, plaintiffs have two years to file a claim from the time the patient should have “reasonably” discovered the injury.
3. Informed Consent
Informed consent may make or break a medical malpractice case.
For those not familiar, doctors are required to inform patients of risks for certain treatments. Patients, in turn, must sign a document and thoroughly understand all risks.
Although there are exceptions, such as for emergencies or if the patient is distressed to the point of refusing life-saving treatment, a patient signing an Informed Consent document essentially states that he or she understands all risks.
However, the issue becomes less clear when a patient consents to a specific procedure, and a doctor performs something different. In this case, a lawyer must prove that diverging from standard care was a mistake and unnecessary, rather than providing a patient with a life-saving service.
4. Shared Fault Rules
Malpractice may not always be a clear-cut case, and as a result, states have Shared Fault Rules. In Connecticut, this is called “modified comparative negligence” and means that if a patient is found to be at least partially responsible for a resulting injury or illness, the award is reduced proportionally to fault. However, this further means that if the plaintiff is found to be at equal or greater fault to the defendant, the lawsuit is dismissed.
