October 27, 2016


By: Peter M. Hileman, Esq.

If you or a family member were injured due to medical malpractice, are you entitled to receive compensation for your injuries? Many patients believe that they have received improper medical care from their doctor, hospital, nursing home, or other health care provider. However, to have a valid medical malpractice claim you need to be able to prove the following three elements:

First, negligence. Your health care provider must have deviated from the accepted medical standard of care while treating or caring for you. The medical mistake must be clear and verified by another medical expert.

Second, causation. The negligence must have caused your injury or harm. Causation may be hard to prove, because a patient’s existing medical condition cannot be the sole basis for a malpractice claim. Rather, the medical provider must cause injury to the patient through actions or inaction that increase the risk of harm to the patient, independent of the normal progression of the existing medical condition.

Third, damages. You must have suffered substantial damages, typically involving a permanent injury of some kind, in order for your case to be viable. In addition to your physical injury, you need to have incurred economic losses, such as large medical bills, loss of employment, or the need for substantial future medical care, due to the malpractice.

Medical malpractice cases, even where the negligence seems obvious, are very difficult to win. You need a competent and experienced attorney on your side. Here are a few of the unique and difficult aspects of medical malpractice cases:

Cost. Malpractice cases require the expenditure of large amounts of time, effort and money, much of which is incurred in the early, investigatory stages of the case. Medical records need to be obtained and reviewed. At least one expert witness must be located and paid for, and that expert must analyze the case and issue a favorable report.

Complexity. Malpractice suits involve difficult procedural hurdles. The plaintiff must file a Certificate of Merit before a malpractice complaint can even be filed. This, in turn, requires a written opinion of a medical expert that the malpractice claim is valid. Such experts are subject to heavy peer pressure not to cooperate with a patient against another physician. Accordingly, such experts are difficult to find (most are out of state) and are very expensive.

Juror Bias. Jurors tend to sympathize with the doctor, not the patient. During the period 2000B2007, plaintiffs in Montgomery County, Pennsylvania won only 26 of 145 medical malpractice verdicts (a mere 18%). This low success rate is likely due to an expensive disinformation campaign which has been waged for many years by interest groups, lobbyists and politicians, in an attempt to convince the public (and thus juries) that medical malpractice suits are frivolous. However, most malpractice lawsuits involve valid claims, brought by competent counsel, and backed by opinions from top physicians. No lawyer would go to the trouble and expense of filing a medical malpractice claim unless he believed strongly that it was winnable.

Lack of Key Element. Even an obvious case of malpractice, such as a surgeon leaving a glove inside a patient and sewing her back up, may not be worth suing for. If the mistake is discovered and the glove is removed soon after the malpractice, the plaintiff may have not incurred sufficient damages to warrant suit. Even where there is serious harm, there may be no case if the doctor was using the accepted standard of care@ in a good faith attempt to treat a serious condition. If the doctor did not cause the condition, and the patient would likely have had a serious problem even with the best of treatment, the doctor has a strong defense even if the outcome was bad.

Timeliness. Malpractice cases must be brought within two years of the date of the malpractice (or in some cases, of the discovery by the patient that there was malpractice), unless the patient was a minor when the malpractice occurred, in which case the minor has two years from her 18th birthday to bring a claim. This means that you must contact an attorney soon after the malpractice occurs (or is discovered) so that there is adequate time to investigate and determine if you have a valid case.

If you feel you have a valid malpractice claim, you should immediately call or contact us. At Drake, Hileman & Davis, we have been winning malpractice cases for your neighbors for over 30 years.