Medical Malpractice Defense
Defense in a medical malpractice lawsuit often follows one of three common strategies. Experienced counsel will always prepare as if a case is going to trial, however, trial can sometimes be avoided by eliminating key elements of the plaintiff’s case including:
- Expert testimony
- Elimination or reduction of damages
Any medical malpractice claim depends on the testimony of experts to explain to the judge and jury the medical mistakes made by the defendant and extent of damages caused by them. The judge is the one who decides if an expert may testify before the jury, so his or her rejection of that expert may derail the case built by the plaintiff.
The judge must evaluate both if the expert is qualified and if that person’s testimony is reliable. Rarely in medical malpractice cases does an attorney hire an obviously unqualified expert to testify on the plaintiff’s behalf. Expert testimony is one of the most effective and persuasive weapons the plaintiff has when it comes to convincing a jury. However, even a qualified expert may be barred from testifying if that expert’s opinion can be proven unreliable.
The defense can bring into question the methods used by the expert to show that their testimony will not be based on established and accepted scientific principles. If enough doubt is cast on the reliability of the expert’s testimony and the judge prevents them from testifying, the plaintiff will have little opportunity to prove negligence.
The defense can also argue absence of causation in a medical malpractice case. This means that harm experienced by the plaintiff was not caused by any mistake that the defendant made. It can happen that a doctor fails to diagnose a serious disease like cancer and instead treats the minor symptoms that a patient presents. Should the patient die, the shocked family will find the doctor’s care negligent and sue for medical malpractice. The defense may argue that the negligence did not cause the patient’s death. Some forms of cancer are incurable, especially in advanced form, and the doctor’s misdiagnosis would have had little effect on how the cancer progressed, thus causation cannot be proved.
Elimination or Reduction of Damages
In a medical malpractice suit, the defendant is only liable to the extent that the patient was harmed. This is true no matter how serious a mistake a doctor makes. If it can be shown that damage to the patient was not what is being claimed by the plaintiff, then the defendant can prevail at trial. There are plaintiffs who claim their lives haves been compromised by the harm that came to them through medical negligence, but investigation by the defense shows otherwise. This may be accomplished by documenting the person leading a normal life, their physical activities unhampered by the damage they claim. Hiring private investigators to gather evidence for the defense is legal and a common strategy.