A medical malpractice case is defended as a rule with the following 5 important defense mechanisms:
(1) We have not done, but ...
(2) If we did it, it was an acceptable risk,
(3) However, if we did, and it was not an acceptable risk, then the patient was not hurt by it, but ...
(4) If the patient had been injured, he was not seriously injured, and finally
(5) We have not done, but even if we, the patient also contributedtoo.
It is the extremely rare circumstances where the defense is injury and the extent of the injury. These cases are quickly and without ever negotiating an agreement reached.
The majority of medical malpractice cases in New York before the hearing, an agreement reached. Of the remaining 5-10% that are not resolved, the doctor wins, most of them at trial. Defenders got their clients off the hook with the defense listed above.
Obviously the above listtoo simple, but it is easy to see how it applies in any malpractice case.
Jimmy D'victim comes in my office say that hernia causes a perforation of the colon. The defense will say quickly that (1) Jimmy the surgery required, (2) That was a breakthrough is a known risk of the procedure identified (3) That there is no real injury, (4) that if there is an injury to a minimum and (5) That he had all his own problems, because he moved during the surgery or notfollow the instructions of the physician before, during and after surgery.
Is it any wonder that produced the majority of cases of misconduct by the defense?
