Types of Defenses in a Medical Malpractice Case

Part two of Defending a Medical Malpractice Claim: A closer look at common arguments for defendants facing a medical malpractice lawsuit.

In the sections that follow, this article will discuss three of the most common defense strategies in medical malpractice cases:

  • rejection of expert testimony
  • reduction or elimination of damages, and
  • absence of causation.

Rejection of Expert Testimony

Part of a judge's job during a trial is to be a "gatekeeper" for expert testimony. Before an  expert medical witness  can testify in front of a jury, the judge must decide two things:

  • whether the expert is qualified and
  • whether the expert’s testimony is reliable.

An Expert’s Qualifications.  A judge may look at an expert’s resume and determine that the expert does not have the necessary education or experience to speak with authority on the topic at issue. This is a fairly rare determination in medical malpractice cases though, because a plaintiff’s lawyer will generally attempt to find the most qualified expert possible, in order to most effectively impress and persuade the jury.

Reliability of an Expert’s Opinion.  Even if an expert has sufficient qualifications to testify, a judge may still bar the testimony if the expert’s opinion is not considered reliable. The courts in any given state will use one of two methods of determining whether expert testimony is reliable: the  Daubert  Test or the  Frye  Test. The nuances of these tests are too complex to explore here, but generally speaking, the  Daubert  Test contains strict requirements that must be met for testimony to be admissible, whereas the  Frye  Test is more easily satisfied.

Regardless of what standard of admissibility a court will apply, a defendant in a case might attack the admissibility of the plaintiff’s expert’s testimony by arguing that the expert’s opinion is not based on sufficiently established and generally accepted scientific principles.

If the defendant convinces the judge that the plaintiff’s expert’s testimony is unreliable, the judge will prevent the expert from testifying. In most cases, that decision will prevent the plaintiff from proving negligence. If the plaintiff cannot prove negligence, the defendant will prevail in the case.

Reduction or Elimination of Damages

No matter how egregious of a mistake a doctor makes, the doctor will only be liable to the extent that a patient was harmed by the mistake (assuming  punitive damages  are not applicable).

Imagine a doctor performs a shoulder surgery on a patient to repair a torn rotator cuff. The surgery was expected to take one hour, but during the surgery, the doctor made a mistake (arguably one that rose to the level of medical negligence), causing the surgery to last more than four hours. The patient decides to sue the doctor for medical malpractice, claiming that as a result of the mistake, the patient has limited mobility and can no longer lift his right arm above shoulder level. But the doctor’s malpractice insurance company hires a private investigator, who films the patient playing tennis (right-handed) and lifting heavy boxes above shoulder level while helping a friend move. (Note: It's perfectly legal for an insurer to hire a PI to observe a claimant in this manner, and it happens more often than you might think.)

In this scenario, the doctor could admit negligence and still essentially win the case by demonstrating that any damage to the patient was minimal.

Absence of Causation

A defendant in a medical malpractice case might also argue that any harm that the plaintiff may have experienced was not actually caused by any mistake made by the doctor. For example, a patient might visit a doctor, complaining of severe headaches. The doctor fails to spot red-flag symptoms, and commits a treatment error by failing to order the right tests, telling the patient that the headache is just a migraine, and prescribing a painkiller. As it turns out, the patient is in the advanced stage of brain cancer, and the condition is incurable and largely not treatable. The patient dies one week later.

In this case, the patient’s family might sue the doctor for medical malpractice. The family will argue that the doctor negligently failed to diagnose the patient, and the patient suffered harm (death). The doctor will defend by arguing that the negligence did not actually cause the harm. The patient had an incurable form of brain cancer. Even if the doctor had properly diagnosed the patient, the death would have occurred, so  the causation element is missing. Of course, the case wouldn't proceed in such a black and white fashion in the real world. The deceased patient's family could argue that the doctor's failure to spot the problem did in fact cause physical discomfort (and pain and suffering damages), since the patient could have been made more comfortable through palliative care even though the condition was terminal.  

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