Malpractice attorneys can help patients make their claims against healthcare providers for negligence. Their task will be to demonstrate that this duty was breached, but how do they do it, exactly?
Negligence may involve physicians, nurses, pharmacists, diagnostic imaging technicians, physicians who read test results or even manufacturers of medical equipment. When investigating allegations of negligence, it is important to find an attorney with the necessary experience and an understanding of such complex matters.
Medical Expert Witnesses
In cases involving negligence involving physicians who did not meet the standard of care for your condition, an expert witness is essential in helping establish what that standard should be. A standard of care refers to treatments most doctors would offer under similar circumstances; an expert witness helps demonstrate that the defendant did not show proper standards and how these failures contributed to your injury.
There may be cases in which the doctor’s negligence (explained here: https://study.com/academy/lesson/what-is-medical-negligence-definition-examples.html) is so obvious that no expert witness is necessary – for example if they leave an instrument inside a patient after surgery that should never happen – however most cases of malpractice involve more complex circumstances that need the expertise of qualified healthcare professionals.
Your lawyer will consider numerous factors when selecting an expert witness for your medical case, including qualifications under law and academic credentials as well as credibility issues and ability to withstand intense scrutiny by juries.
An effective medical expert should have in-depth knowledge about your case, experience in the field and a strong grasp of all relevant medical and scientific issues involved. They must also possess excellent credentials that allow them to provide clear testimony that can withstand cross-examination in court proceedings.
Medical experts must also be able to testify as to the standard of care in your specific case. If the incident involves emergency room physicians, for example, your lawyer will likely seek expert testimony from someone familiar with that environment so they can ascertain what types of treatments a healthcare provider should provide under high-stress environments.
Your attorney will work closely with an expert in order to establish the source of your injuries. For instance, if complications from a surgical procedure and their associated negligence were responsible for contributing to medical conditions in you or a loved one, an expert will help identify how that negligence led to them becoming sicker or injured.
Certificate of Merit
Certificate of Merit documents are an integral component of malpractice cases. All healthcare providers must uphold certain standards of care for their profession; any deviation can be considered negligence and used against healthcare providers in malpractice suits.
In order to show this connection between healthcare provider negligence and their injury, and this case in particular, plaintiffs require expert witnesses who will attest that your claim has merit before testifying at trial. Before signing their sworn declaration stating such, medical expert witnesses must sign an affidavit which states this.
According to this site, each state’s laws regarding the contents of an affidavit vary, with most mandating that a medical professional who files it reasonably believes that the defendant breached their standard of care in their field and that this breach directly contributed to injury sustained by plaintiff. This document serves as an important screening mechanism that helps reduce frivolous malpractice lawsuits which often contribute to rising malpractice insurance premiums for physicians and other healthcare providers.
Some states require that plaintiff’s attorneys file the Certificate of Merit as part of the complaint or even prior to it, while others allow a later submission, generally within a brief time after filing it. When this occurs, a hearing will usually be scheduled wherein both a judge and panel of healthcare professionals review the affidavit in order to decide its acceptability or otherwise.
Executor of an Affidavit must be a licensed doctor in good standing with their state’s licensing board; usually the plaintiff’s malpractice lawyer. However, depending on circumstances surrounding trial proceedings and personal relationships that might compromise impartiality among experts who signed Certificates of Merit may not be allowed as testifying witnesses at trial.
Punitive Damages
Punitive damages may be awarded in certain malpractice cases to punish wrongdoers and deter similar behavior by others. Punitive damages usually consist of large sums being distributed as reimbursement to victims for out-of-pocket expenses as well as compensation for pain and suffering.
To prove negligence and establish that it caused injuries to their client, attorneys for victims of negligence often use expert witnesses familiar with both their case and the type of negligence committed. To win such cases, legal teams often call-in expert witnesses that can testify on behalf of victims’ attorneys in their favor.
If both experts agree that there is evidence of negligence, a plaintiff’s lawyer can file a lawsuit and present its facts before a judge or jury for further consideration. Depending on state laws, they may award compensatory and punitive damages accordingly.
At its core, compensatory damages seek to place victims back in the position they would have been had negligence not occurred. This may involve covering future medical costs and any income losses suffered as a result of being unable to work; along with providing for noneconomic damages like emotional distress, loss of enjoyment of life and pain and suffering.
Damage Caps
Damage caps are frequently utilized in personal injury and malpractice claims to control litigation costs for both plaintiffs and defendants. Damage caps are frequently applied by a
Medical malpractice attorney against large institutions like hospitals or government entities as they reduce the risk of large payouts that could force them into bankruptcy. Such caps discourage frivolous lawsuits and make the justice system more efficient.
At the height of the malpractice crisis in the mid-1970s, several authorities adopted caps on both noneconomic and total damages in negligence actions. Since then, studies on their effect have been undertaken. Some research suggests that such caps lower malpractice insurance premiums while increasing physician availability (Hollinger & Encinosa 2003).
Some argue that malpractice caps hinder patients’ rights to receive fair and adequate compensation for their losses, particularly when suffering serious and debilitating injuries. They further point out how these caps encourage defensive medicine; where doctors agree to unnecessary treatments to decrease future liability claims.