A medical malpractice case is typically defended with the following 5 important defenses: (1) We didn't do it, but... (2) If we did it, it was an acceptable risk, (3) However, if we did it, and it wasn't an acceptable risk, then the patient wasn't hurt by it, but... (4) If the patient was hurt, he wasn't hurt that badly,and finally, (5) We didn't do it, but even if we did, the patient also contributed too. It is the extremely rare case where the defense admits causing injury and the extent of injury. Those cases are settled quickly without ever going to trial. The majority of medical malpractice cases in New York are settled prior to trial. Of the remaining 5-10% that are not settled, the physician wins the majority of them at trial. Defense counsel have gotten their clients off the hook using the defenses listed above. Obviously, the list above is overly simplistic, but it's easy to see how it applies in any malpractice case. Jimmy D'Victim arrives in my office claiming that hernia surgery caused a perforation in his colon. The defense will quicly claim that (1) Jimmy needed the surgery, (2) That a perforation is a known recognized risk of the procedure, (3) That there is no real injury, (4) That if there is an injury it's minimal, and (5) That he caused all of his own problems because he moved during surgery or failed to follow the doctor's instructions before, during and after surgery. Is it any wonder that most malpractice cases are won by the defense? |
