Medical negligence lawsuits are difficult to win because proving that medical malpractice occurred can be quite a challenge. They can also yield very high compensation amounts, so insurance companies put up a strong fight to defeat them. But fear not. The medical malpractice lawsuit challenges you are likely to face are problems that many other medical malpractice victims have successfully overcome before.
The Legal Elements of a Medical Malpractice Claim
There are five legal elements to a medical malpractice claim:
- The existence of a doctor-patient relationship. This element is almost always uncontroversial. The only time it might be called into question would be if, for example, the doctor rendered first aid after witnessing a car accident while off-duty.
- A specific duty of care that the healthcare provider (typically a doctor) owes their patient. You need a medical expert witness to prove the exact nature of this duty under the circumstances of your case.
- Breach of the doctor’s duty of care through substandard medical treatment.
- You suffered physical harm.
- Whether the doctor’s breach of duty caused the harm that the patient suffered.
These elements matter just as much in private settlement negotiations as in an actual medical malpractice lawsuit.
You need medical expert witnesses to prove the specific duty of care that the doctor owed you. Medical expert witnesses are typically doctors or former doctors. The problem is that many doctors are reluctant to testify against their peers in the medical profession. Some former doctors, however, work as professional expert witnesses. They spend most of their time researching medical malpractice cases, preparing for trials, and testifying.
Your lawyer must pay these witnesses for their expert testimony, and the opposing party’s lawyer will undoubtedly make sure the jury knows that the witness is paid. Nevertheless, the defense will certainly be doing the same: paying its own medical expert witnesses to rebut the testimony of your expert witnesses. This is routine in medical malpractice lawsuits.
The Certificate of Merit
Like many other states, Kentucky has enacted a special law designed to discourage frivolous medical malpractice lawsuits. When you file a medical malpractice lawsuit complaint, you must also file a certificate of merit. In this certificate, your attorney swears under oath that they consulted with a medical expert who is familiar with your case and that the expert concluded that your case is worth pursuing.
Without a certificate of merit, you cannot file a medical malpractice lawsuit in Kentucky. Fortunately, experienced medical negligence lawyers know many medical experts who can help with a certificate of merit and can also testify in court on your behalf.
In many cases, the appropriate professional standard of care cannot be stated simply. Additionally, many medical malpractice cases are scientifically complex. If the jury has insufficient background knowledge of science and medicine, they may become confused. This is especially likely if both sides call expert witnesses and these witnesses contradict each other.
Defense attorneys often take advantage of this confusion by suggesting to the jury that if they are confused, then their resulting doubt justifies a finding that the defendant is not liable for medical malpractice. An experienced medical negligence attorney will know how to handle this defense strategy.
Different Ways of Interpreting Evidence
Another problem is that different juries can look at the same evidence and testimony but draw completely different conclusions. It’s precisely for this reason that your attorney’s skill, persuasiveness, and experience are essential to any medical malpractice lawsuit. It’s also an important part of settlement negotiations because if the opposing party knows you have a good attorney, they’re more likely to settle out of court.
Game-Playing Insurance Companies
The party that will pay your claim will probably be a medical malpractice insurance company. You will probably negotiate and settle your claim outside of court. At the other side of the negotiating table will sit a very experienced insurance adjuster. Insurance adjusters carry a big bag of negotiating tricks with them, which is why you need a medical negligence lawyer to do the negotiating for you. We are just as experienced negotiators as they are.
The Insurance Adjuster’s Bag of Tricks: A Small Sampling of What’s Inside
Following are some examples of the typical tricks that insurance companies like to play:
- Burdening you with numerous small delays and hoping that you will accidentally miss the statute of limitations deadline. The medical malpractice statute of limitations deadline is the deadline by which you must file a medical malpractice lawsuit, finalize a settlement, or lose your claim. In Kentucky, the deadline can be as short as one year after the malpractice occurred (sometimes it is much longer than that, however).
- Offering you a low-ball settlement on a bogus “take-it-or-leave-it” basis with an artificial deadline. The insurance adjuster will usually try to pull this one before you have had a chance to consult your lawyer. Remember, the statute of limitations is your only real deadline.
- Speaking with you outside the presence of your lawyer and asking you trick questions. They can then use your answers against you later.
- Gaining access to your social media accounts and looking for evidence that they can use to prove that your claim is invalid or that you are not suffering as much as you say that you are. Stay off social media while your claim is pending.
- Convincing you that you don’t need an attorney. This is the biggest dirty trick of all. You might be surprised at how friendly an insurance adjuster can be when you have a substantial claim. This is the insurance adjuster’s way of winning your confidence so that you will believe that you don’t need an attorney. Don’t fall for this trick no matter what.
The foregoing list describes only five of hundreds of different tricks that an insurance adjuster might use. We know all of them, and we won’t fall for a single one. Most medical malpractice cases don’t go to trial if the claimant hires a legal practitioner.
We’re Ready to Lace Up Our Gloves for You
The medical negligence lawyers at Gladstein Law Firm, PLLC have successfully overcome all the challenges discussed above, along with many more. Contact us so that we can schedule a free consultation. If you are not able to visit us in our office, we can come to meet you.