California Medical Malpractice Lawyers
California Professional Negligence Lawyers
Modern Standard of Care Principles
While the law varies from state to state (the information
contained herein is general) medical malpractice is ordinarily not based
on strict liability or absolute standards. In other words, before liability
or fault can be imposed against a doctor, it must be shown that s/he was
at least negligent in treating the patient. Merely because an untoward
result has attained does not mean the physician is guilty of malpractice.
Unless the plaintiff proves that the conduct of the physician fell below
the requisite professional standards, s/he may generally not recover.
Generally, in order to successfully prevail in
a claim of professional negligence against a healthcare provider, a plaintiff
(injured party) must establish the following:
(1) There must be a duty owed by the physician
to the patient. (This usually arises from the physician-patient relationship.);
(2) The physician must have violated the applicable
standard of care in his/her treatment of the patient;
(3) The violation of care must be the direct and
legal cause of the injuries to the plaintiff;
(4) Damages – injuries to plaintiff.
In order to establish that the physician or professional
deviated from the standards in the industry or practice, the plaintiff's
lawyer must present qualified experts to testify as to the minimum standards
required in the profession. The expert must have properly reviewed the
case, determining what acts and omissions the doctor committed which deviated
from the minimal standards required by the profession.
In the 1940’s, 50’s and 60’s, the requirement
of securing a medical witness to testify against a fellow doctor whose
errant practices caused injury, could prove so difficult as to be an insurmountable
obstacle. Many lawyers had to inform well deserving clients in malpractice
cases that doctors, as a profession, were practically (not legally) immune
from judgments.
Illustrative of this is the following comment by
the Supreme Court of Kentucky:
"The notorious unwillingness of members
of the medical profession to testify against one another may impose
an insuperable handicap upon a plaintiff who cannot obtain professional
proof." [Butts v. Watts, (1956) 290 S.W.2d 777.]
Whether this "conspiracy of silence"
resulted from professional courtesy between doctors, fear that insurance
premiums would rise, or fear of reprisal from colleagues or medical societies,
it has, fortunately, become much easier today to obtain the required testimony.
Unfortunately, today many states have imposed caps
on damages (irrespective of the award by the jury), and other limitations
on the injured parties" right to recover, which have seriously jeopardized
a plaintiff's right to recover.
Indeed, in many states, medical malpractice actions
are the most difficult types of cases upon which plaintiffs may prevail.
Lastly, as if limitations on a plaintiff's right
to recover were not enough, many more states place caps on the amount
of attorneys" fees the prevailing lawyer may recover. (By dissuading
good lawyers from handling medical malpractice actions through limitation
of the amount the lawyer can earn, the medical malpractice victims are
placed at further disadvantage.)
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