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Understanding The Defense's Strategy Is Key To Medical Malpractice Claims

Whenever medical malpractice lawyers bring claims against hospitals, doctors, nurses, or clinics, they often focus on what the defense's strategy is likely to be. Even if the practitioner's insurance seems open to a settlement, an attorney wants to present the most convincing case possible to discourage them from considering a legal fight. A lawyer will frequently try to break down the following three defenses.

Professionally Acceptable Decision-Making

One of the most common defenses is that a practitioner made decisions that hew to a professionally accepted standard of care. Suppose a surgeon decided to use an older procedure. However, they claim the procedure isn't so old that other surgeons would object to its usage. Even if the outcome was negative, the doctor would argue they were using accepted practices to provide the best help possible.

Medical malpractice attorneys will talk to experts in the field to learn what the current standard of care is. Even if a doctor has been out of medical school for years, that isn't an excuse for keeping up with best practices in their field. If it's clear that no one would've used the procedure in question, then the patient might assert that the choice was malpractice.

Due Diligence

Another common defense is that the staff did as much due diligence as possible. Suppose a patient had an adverse reaction to a drug during treatment. The defendant might use various forms of lab work and research to show that they took every possible step to determine if the drug would affect the patient.

A plaintiff's counsel might demand the discovery of all of the documents that show what the hospital's staff did. If there are gaps or signs in the records that indicate that someone forgot to order a test or ignored certain results, then an attorney can pounce on that as evidence of malpractice.

Insufficient Harm

As awful as it is to say, a mistake doesn't rise to the level of malpractice if it doesn't cause sufficient harm to justify a claim. However, modern treatments render this a fairly weak defense in most cases simply because going to a different doctor to fix anything is likely to cost tens of thousands of dollars at least.

Where this gets sticky is defining how much harm came from a mistake. Suppose a doctor accidentally lacerated a patient's cheek during surgery. They were able to stitch the laceration, but the damage left a visible scar. A patient might seek malpractice damages on the grounds that the scar disfigured a very visible part of their body.

To find out more, contact a medical malpractice attorney in your area.