As a medical malpractice attorney, I have seen every defense that can be raised in a medical negligence lawsuit. These defenses can be devastating to the prospects of winning a medical negligence lawsuit. One defense that we hear often is that the negligent doctor was stuck between a rock and a hard place. In other words, had the doctor taken another course of action he or she would have put the patient in harm’s way and potentially been sued if that other course of action did not work out. Similarly, we hear the argument that additional testing raises the risk of practicing defensive medicine requiring doctors to order far too many tests. The cost of these tests raises the cost of healthcare and puts patients at risk by identifying benign conditions in the body that result in invasive testing or unnecessary surgery. These arguments can sway a juror who does not know the truth about defensive medicine.
Under the law of every state, a plaintiff has the burden of proving that the defendant physician fell below accepted standards of care. This means that the doctor made a medical mistake, medical error or was otherwise careless. Standards of care can be found in professional society guidelines, such as guidelines and recommendations published by the American Hospital Association, the American College of Cardiology, the American College of Emergency Physicians and so on. Sometimes, the professional guidelines are black-and-white. Other times, guidelines or recommendations are subject to the circumstances of a particular clinical situation. In the courtroom, the standard of care is presented to the jury by an expert witness, typically a physician who is an expert in the field of medicine at question. The expert will testify as to what a reasonable physician should do under like or similar circumstances. The failure to act or not act in a manner consistent with accepted standards of medical care is medical negligence. Medical negligence and medical malpractice are interchangeable terms.
Whether a particular test is required in a particular clinical scenario by the applicable standard of care must be established by a preponderance of evidence by the plaintiff in order for the plaintiff to prevail. In order to establish that a particular standard of care is applicable to a lawsuit, the plaintiff has the burden of proving that standard of care exists, and that it applies in a particular clinical scenario. This must be done through the testimony of a medical expert. The medical expert must be qualified to discuss the standards of care at play. For example, a neurosurgeon cannot testify about standards applicable to a podiatrist. However, in some states it is recognized that the specialties, training and knowledge of doctors in one field overlap with the knowledge of doctors in another field. For example, internal medicine specialists frequently act as primary care providers. However, the training of an internal medicine specialist is the basis for many other specialties of medicine, including cardiology, pulmonology, nephrology, and gastrointestinal medicine. So, a physician who practices in one of those subspecialties has already been trained in the broader specialty of internal medicine.
The argument that defensive medicine is costly to health care is not grounded in any economic support. No statistics support the argument that health care costs have escalated due to the practice of defensive medicine. Instead, a doctor must validate a request for testing in order to have it covered by insurance. In addition, in order to practice within accepted standards of care, the physician must document the reasons supporting the need for a particular test or investigative procedure. If defensive medicine was truly a driving consideration, every physician would order every test every time in order to protect themselves against a medical malpractice lawsuit.
Jurors concerns about defensive medicine increasing the cost of healthcare and leading to unnecessary procedures and surgeries are unfounded. However, the medical industry continues to promote the concept that defensive medicine is leading to societal problems. A skilled and experienced medical negligence lawyer in Cleveland, OH, like from Mishkind Kulwicki Law Co., L.P.A., will grill a defendant physician and his or her experts in deposition about concepts of defensive medicine that are at play.