Analyzing A Medical Malpractice Case

Analyzing Appeals Cases

Does the plaintiff get money from the ruling? What is not in the case?

Settling parties Unappealed issues

What is the timeline of the facts? What is the legal issue? How does the ruling deal with the legal issue?

Who Drives the Litigation Machine?

Plaintiffs' lawyers have the burden of finding and bringing the cases Running cases Lots of conflicts, some prosecutions

Defense lawyers have to hustle insurance companies and medical businesses Just as ruthless, but more dignified

What is the Starting Point?

Damages Injury More loveable than the defendants

A person with legal standing to bring the claim The prima facie case you have to present to jury to be

allowed to get a verdict Usually defined by the jury instructions

The expert testimony to establish standard of care, breech, and causation

Identifying Plaintiffs

Who is the patient? Who else is claiming an injury?

Spouse/Ex-spouse? Parents? Common law relatives? Bystanders?

Who has the legal right/duty to bring a claim? What are the conflicts of interest? Who can you trust?

Are you sure?

Physician Defendants

Who does the patient think did wrong? Who was the primary physician? Where there any consultants? Where there any hospital based physicians?

You will need to review the records carefully to look for hidden physicians

What are the legal relationships between the physicians and with any employers or contractors?

Non-Physician Defendants

Paramedical personnel Nurse practitioners? Physician's assistants? Nurse anesthetists? Other paramedical personnel

Who is the employer? Who has the legal duty to supervise?

Corporate Defendants

Hospital Vicarious liability for employees Negligent supervision or retention of

contractors Laboratories Product manufacturers and sellers

Proof = Facts

You win cases on facts and expert testimony, not on tort theories

Where do you find facts? Medical records Witness interviews Informers Detectives

Physician office records

Patient charts Appointment books Any other records Physician's personal diary and records

Hospital records

Chart Nurses' notes Physician's notes Physician's orders Vital signs Tests Consent forms

Off-chart records

Private notes by staff Cardex Pharmacy records Lab records Risk management records Billing office records Pharmacy records Independent lab records

Fact Witnesses

Who knows something? Who did they tell?

What was the negligence?

Systems errors? Individual negligence? Cover-up? Bad faith?

Timeline Analysis

Grid Who knew what and when? Be able to show the jury the timeframe

Timeline Analysis

Person 1:00 PM 2:30 4:00 6:00

ER Nurse Checked in patient

Noticed bleeding

ER Doc Saw patient

Told of bleeding