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The field of medicine as a scientific discipline has advanced tremendously over the past 50 years and at present most medical care provided in the United States is exemplary, but occasionally a doctor, or other health care provider, negligently causes severe injury to a patient.
Where a doctor or other health care provider has negligently injured a patient, the patient may consult an attorney with reference to pursuing a civil action. A prospective client should prepare a chronology or a short statement of the event that led to the injury and make an appointment with the firm for an initial consultation, for which there is no fee. At the initial consultation, we will discuss the basic facts of the matter. We will give an overview of what is involved in a medical malpractice action and provide advice as to whether or not or how to proceed. Generally, the firm requires a $1,500 retainer from the client to cover, or at least partially cover, the expense of obtaining preliminary review by a medical expert. A client may retain the firm either on a retainer basis or a contingent fee basis. A retainer basis essentially involves payment to counsel at a specified hourly rate. A contingent fee agreement sets forth the counsel fee as a percentage of recovery. The client generally is responsible for payment of the firm’s out-of-pocket disbursements whether the case ultimately is settled or won or lost at trial.
Medical malpractice actions must be filed within two years of when the malpractice occurred or when the patient knew or reasonably should have known of the malpractice. If a plaintiff fails to file the complaint within the statute of limitations, the court will dismiss the case and the plaintiff will be forever barred from pursuing the action even if the malpractice is clear.
Medical malpractice actions generally are expensive to prosecute and difficult to prove. One of the reasons for this is that doctors justifiably are held in high esteem in our society and juries accordingly are reluctant to return a verdict against a doctor absent clear evidence of negligence. Another reason is that medical malpractice actions require the presentation of expert testimony to establish the standard of care that the doctor was obligated to meet, the doctor’s departure from that standard, and that the doctor’s departure from generally accepted standards of medical care caused the injury in question. Most non-medical malpractice civil actions do not require expert testimony to establish the standard of care that a defendant was obligated to meet. For example, in an automobile accident case, lay people are familiar with the rules of the road and do not require expert testimony to determine whether or not a defendant driver was negligent. In a medical malpractice action, lay juries do not have the knowledge, training or experience to evaluate, without the assistance of expert opinion, whether or not a defendant handled a medical or surgical problem properly. Accordingly, in a medical malpractice action a plaintiff may incur considerable expense in retaining experts in the appropriate fields of medicine.
The first step in investigating a medical malpractice action is obtaining the relevant medical records. This requires the client to sign an authorization which allows his or her doctor to release the medical information to the attorney. Once the relevant medical records are obtained, the attorney submits the records to an expert in the relevant medical field. The expert then provides his or her opinion whether or not the doctor met accepted standards of care in treating the patient. The medical expert also addresses the issue whether or not, assuming the defendant doctor fell below accepted standards of care, that departure led to injury. Obviously, medical care may not be successful. The underlying disease process or injury may be such that even top notch care cannot prevent a further illness or even death. In such a case, there would be no basis for a medical malpractice action. Nor would there be a basis for a medical malpractice action in a case in which a doctor failed to meet accepted standards of care, but that failure was not the cause of an adverse result. An expert therefore must address the issues whether or not the doctor’s care truly was substandard, and, if so, whether or not that substandard care truly was the cause of injury to the patient. If both conditions are met, a medical malpractice action may be appropriate.
An attorney institutes a medical malpractice action by filing a complaint with the court. The attorney or the sheriff then serves a copy of the complaint along with a summons to answer the complaint upon the defendant. Most doctors and other health care providers are insured, and once the complaint is served, the defendant turns the complaint over to his or her insurance company to provide a defense. The insurance company then assigns the case to a lawyer who specializes in defending medical malpractice actions. That lawyer then files a document called an Answer, which essentially is a denial of the allegation that the defendant committed medical malpractice.
Once the plaintiff is served with the defendant’s answer to the complaint, the plaintiff has 60 days in which to serve an affidavit from an expert attesting that the claim is meritorious. If the plaintiff fails to file the required affidavit, the court will dismiss the action and, as with an action dismissed on the basis of failure to file within the statute of limitations, the case cannot be pursued regardless of the underlying merits of the claim.
Once a medical malpractice action is underway in the court system, the case proceeds in a manner similar to any civil action. The parties exchange interrogatories (written questions) and each side answers the other side’s questions. The parties conduct depositions (the taking of testimony under oath) with the various lawyers all present and the parties exchange the written reports of their expert witnesses and take the depositions of those experts.
It generally takes three to five years for a medical malpractice action to reach trial. One reason that it takes so long is that the cases are inherently complex and a lot of work goes into preparing the cases for trial. Another reason is that the court system is overloaded with civil cases and the judges who preside over civil actions simply cannot keep pace with the filing of the lawsuits.
When a medical malpractice case is reached for trial, the court assigns the case to a particular judge. That judge then meets with the attorneys to discuss the facts and issues to be tried. The judge then arranges for a panel of prospective jurors to come to the courtroom. The judge and the attorneys then question the prospective jurors and select a panel of six jurors with one or two alternate jurors to hear the case.
Once a jury is selected, the judge gives the jury a short overview of what will be involved with the trial. The attorneys then give their opening statements. An opening statement is a discussion of what the attorney believes the evidence will show. In a medical malpractice action, the plaintiff’s attorney will give the jurors a summary of the medical events which led to the plaintiff’s injury. He or she also will explain the basis for the plaintiff’s claim that the defendant was negligent. Finally, the attorney will tell the jury what evidence will be presented. The defendant doctor’s attorney then gives an opening statement in which he or she generally points out weaknesses in the plaintiff’s case and explains to the jury why he or she believes that the plaintiff’s claim is without merit.
After opening statements, the plaintiff begins his or her presentation of evidence. Evidence may include the in-court testimony of witnesses, the presentation of videotaped deposition testimony, the reading of certain deposition testimony that had been taken during the investigative stage of the case, various medical records, illustrations, and models. When a witness testifies, the attorney presenting the testimony of that witness conducts direct examination. Here the attorney hopes to elicit from the witness a coherent statement of the events that support the claim. The opposing attorney then has the opportunity to conduct cross-examination. This may involve bringing out certain points that support the defendant’s version of events or by attacking the credibility of the witness. Almost invariably, plaintiffs in medical malpractice actions are treated with respect and courtesy in the courtroom and are not personally attacked or criticized.
The plaintiff in a medical malpractice action has the burden of proof. In other words, when a person makes an allegation, that person must prove the allegation. The burden of proof is “by a preponderance of the evidence.” This means that the plaintiff must convince the jury that the allegation is more likely true than not true. If the evidence on a particular issue is equally balanced, that issue has not been proven by a preponderance of the evidence and the plaintiff’s claim will fail.
A jury may consider both direct evidence and circumstantial evidence. Direct evidence is direct proof of a particular fact, such as the testimony of an eyewitness. Circumstantial evidence consists of a chain of circumstances pointing to the existence of certain facts. Circumstantial evidence may be based upon deductions or logical conclusions that the jury reaches from the direct evidence.
The jury will have to decide which witnesses to believe and which witnesses not to believe. Regardless of whether the witness is a lay person or an expert, the jury may believe everything a witness says, or only part of it or none of it. In deciding what testimony to believe, a jury takes into consideration the witness’s interest in the outcome of the case, the accuracy of the witness’s recollection, the witness’s ability to know what he or she is talking about, the reasonableness of the testimony, the witness’s demeanor on the stand, the witness’s candor or evasion, the witness’s willingness or reluctance to answer, the inherent believability of the testimony, the presence of any inconsistent or contradictory statements, and the like.
After the presentation of all of the evidence, the attorneys are given the opportunity to make closing statement or summations to the jury. Summations generally are more argumentative than opening statements. Opening statements give the jury an overview of the factual background of the matter. Summations are an opportunity for the attorneys to argue why his or her side should prevail. The defendant presents his or her summation first. In a medical malpractice action, the defense attorney will argue to the jury that based upon the evidence that it has heard the doctor did not do anything wrong and that the injury suffered by the plaintiff either was the natural result of the underlying disease process or an unavoidable consequence of the medical treatment or surgery that needed to be undertaken. The plaintiff’s attorney sums up last. The plaintiff’s attorney will argue how the evidence presented at trial supports the plaintiff’s claim that the defendant was negligent and how that negligence caused injury to the plaintiff.
After the parties give their summations, the court gives its charge or instructions to the jury with respect to the law that applies to the case.
The judge will explain that negligence is conduct which falls below a standard of care provided by law for the protection of persons from foreseeable risks of harm. Negligence may result from the performance of an act or the failure to act. In a medical malpractice action the jury must determine the standard of care which a doctor or other health care provider was obligated to meet. Based upon common knowledge alone, and without technical training, jurors normally cannot know what constitutes standard medical practice. Therefore, the standard of practice by which a doctor’s conduct is to be judged is furnished by expert testimony, that is to say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on medical subjects.
In examining the conduct of a doctor to determine whether or not there is a deviation or a falling below an accepted standard of care, that is, whether or not he or she is negligent, the jury is told that the law recognizes that the practice of medicine is not an exact science. The jury further is told that the law recognizes that the practice of medicine, according to accepted medical standards, may not prevent a poor or unanticipated result. If a doctor applied the required knowledge, skill and care in the diagnosis or treatment of a patient, the doctor is not negligent simply because a bad result occurred. Similarly, where, according to accepted medical practice, the manner in which the diagnosis or treatment is conducted is a matter subject to the judgment of the doctor, the doctor must be allowed to exercise that judgment. A doctor cannot be held liable if within the exercise of judgment he or she has made a mistake. Where judgment must be exercised, the law does not require the doctor to have infallible judgment. Thus a doctor cannot be found negligent so long as he or she employs such judgment as is allowed by accepted medical practice. If, in fact, in the exercise of judgment a doctor selects one of two or more courses of action, each of which in the circumstance has substantial support as proper practice by the medical profession, the doctor cannot be found negligent simply because the course chosen produces a poor result.
Another area of law that the judge will explain to the jury is proximate causation. A plaintiff not only must prove that the defendant fell below accepted standards of care, but also that the departure from accepted standards of care was the proximate cause of injury to the plaintiff. This essentially means that the plaintiff must prove that the negligence was a substantial factor in producing the adverse outcome. In some cases, proximate causation is clear, for example, where a surgeon cuts a nerve by mistake. In other cases, proximate causation is difficult to prove, such as where a patient comes to the doctor with an illness in an advanced stage and the issue is whether or not the doctor’s delay in providing treatment allowed the condition to worsen.
If the jury finds that the defendant was negligent and that his or her negligence was the proximate cause of injury to the plaintiff, the jury must determine what constitutes fair and reasonable damages. If the jury finds for the plaintiff, the plaintiff is entitled to recover fair and reasonable monetary damages for the full extent of the harm caused, no more and no less. This includes compensation for any permanent or temporary injury resulting in pain, suffering, disability or impairment of the plaintiff’s faculties, health or ability to participate in activities. The measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances of the case to compensate the plaintiff. The law does not provide any table, schedule or formula by which a person’s pain and suffering, disability, impairment or loss of enjoyment of life may be measured in terms of money. The amount is left to the jury’s sound discretion. A jury may also award damages for loss of income and medical expenses. In the case of a death, the jury may award damages for the economic loss suffered by the heirs, including the economic equivalent of loss of advice, counsel, guidance and companionship. The jury may not award damages for the emotional suffering of the family.
Note that the law is continually evolving and changes regularly. This website is not meant to be a comprehensive statement of any area of the law, but is intended only to afford some familiarity with basic terms and concepts in New Jersey. You should consult a lawyer for more detailed information. All materials on this website are the property of Drazin and Warshaw, P.C., copyright 2001, and are not to be used without written permission