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People used to think that suing a pillar of the community for medical malpractice or dental malpractice was a terrible thing. This point of view was encouraged by the medical and dental professions, whose attitude was, “How can people be so ungrateful when we are dedicated to saving humanity?” And, when the doctor was a family friend and confidant, that was a valid argument.

Many Doctors are Highly-Paid Technicians

But today, that relationship is basically gone. Many doctors are highly-paid technicians, who have spent a lot of time and money being educated, so they can earn a very good living. They are super specialized, which means they are concerned with treating one part of the body or one organ, and most of them have little free time for a patient’s personal problems or anything outside their narrow field of expertise. They see patients as technical problems to be cured and gotten on their way as quickly as possible. Some doctors see as many as a 70 patients a day. How much time do you think such a doctor has to listen to your personal problems?

Even the Most Learned Professors Make Mistakes

In the past, when the doctor was the trusted family advisor, a medical malpractice or dental malpractice lawsuit was considered a breach of trust and friendship and a terrible accusation that the doctor had committed an unprofessional act. A doctor, who was sued, felt his reputation and career were on the line. Those days are gone. Today, the law recognizes that even the most learned professors make mistakes. When people are injured by medical malpractice or dental malpractice, they should be compensated.

Many Doctors are Sued, and It Does Not Hurt Their Prestige or Incomes

Even if your claim is successful, you are not going to bankrupt the doctor, or take away his home, or lifetime earnings. When a doctor is sued for medical malpractice or dental malpractice, his insurance company hires a lawyer, pays the expenses of his defense, and any settlement or judgment against him. If the doctor’s insurance company settles the case out of court, the doctor may not have to spend a single afternoon away from his office, explaining his actions in court. In fact, defense lawyers often ask the judge to issue an order that any settlement paid to a victim remain “sealed and secret”, so it is difficult or impossible to find out whether the doctor was successfully sued for malpractice, and his reputation and income remain intact. Today, many doctors are sued, and it does not hurt their prestige or their incomes.

Thousands of patients suffer, due to malpractice, and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

This is the length of time in which you must file a medical malpractice lawsuit or a dental malpractice lawsuit, allowing for all possible extensions we have listed in earlier blog posts.  Most states use the

Hybrid Rule under which a medical malpractice lawsuit or a dental malpractice lawsuit must be started within a certain length of time after the time of accrual – no matter what.  Unless you have a really good excuse, such as deliberate concealment of malpractice by the physician or dentist, you cannot sue for any reason after the absolute time limit has passed.  This is simply an application of the legal principle mentioned earlier, that a person should not have to spend the rest of his life worrying that someone might come after him for a mistake made in the distant past.

Other states use a system known as Balancing the Equities in deciding whether

to grant an extension of the time limit.  It means that the judge can consider all the factors, which might have justified a delay over the time limit and decide whether Equity (fair play) entitles you to more time.  However, you must be prepared to show good reason why you are entitled to an extension, and it will usually be granted only if the delay was caused by something totally beyond your control.

There are four things to remember about suing

a doctor for breach of contract:

1. You have to show that it was something you would not have done without an explicit promise of a good result.
2. You should have the doctor’

s promise in writing, or one reliable witness, if it was a verbal promise.  Otherwise, it will turn into a dispute, with you on the losing end.
3. The results have to be far below what you could reasonably expect, e.g. your nose looks much worse than it did before Plastic Surgery.
4. Your expectations must be reasonable, e.g. if your knees are crippled by arthritis or old injuries, you cannot expect the doctor to make them work like they did when you were sixteen.

Suing a Doctor for Breach of Contract:

1. In suing for breach of contract, the time limit is much longer than for a medical malpractice or dental malpractice lawsuit.  If you have run over your time limit to file a malpractice lawsuit, and can satisfy the conditions noted above, you may be able to salvage your case by a suit for breach of contract.

2. You do not have to prove the doctor committed malpractice.  You only have to show that the results did not conform to the doctor’s promises.  In many cases, the report of a surgical operation only describes the mechanical details of what was done.  It does not say how well it was done and is useless to prove malpractice.  A report of a gallbladder operation might describe everything as going perfectly, but if you still have trouble and your x-rays show that gall stones were left behind, it does not matter what the surgeon’s report says.

Disadvantages of Suing a Doctor for Breach of Contract:

1. The amount you receive may be limited.  In some states, you can only sue for what you have lost.  This is known as Reliance Damages, the money you lost by relying on the doctor’s promises.  In other states, you can also get Expectancy Damages, compensation for the happiness, satisfaction, and gains you would have achieved if the doctor had made good on his promise.  Expectancy damages can run almost as high as what you would receive in a medical malpractice or dental malpractice lawsuit.

2. You must prove there was a definite promise of a specific result.  The law governing breach of contract is different from laws governing medical malpractice or dental malpractice and is different in every state.  Only your lawyer can tell you whether it will be worthwhile, or even possible, in your case.

The Rule Is: A lawsuit for breach of contract can sometimes succeed when you cannot sue for malpractice.  Only your lawyer can decide whether this is the way to go.

If you are going to file a medical malpractice lawsuit or a dental malpractice lawsuit, you have to show that you were injured.  Otherwise, the court cannot give you anything, no matter what the doctor did to you.  The question is whether you

have to prove that what happened was the doctor’s fault, beyond a reasonable doubt, and rule out all other possibilities.

Let us assume you

had a baby in a hospital and the infant suffered a subdural (brain) hemorrhage.  The hemorrhage clears up, but as your child grows, he or she develops cerebral palsy, which you learn may have been due to rough handling and improper use of obstetrical forceps during delivery.  You have reason to believe the same injuries that caused the subdural hemorrhage also caused your child’s cerebral palsy.  When you file your lawsuit, the doctors and the hospital admit that it was a difficult delivery, and the baby’s head was damaged.  But, they also say that cerebral palsy has many causes, and challenge you to rule out other possible diseases or injuries.  That would be almost impossible.  How would you deal with it?

Or, your husband has severe chest pain and goes to the hospital where they do not take an ECG (electrocardiogram), or any lab tests, and send him home with medications.  He later dies of a heart attack.  The hospital says, “It was a massive heart attack, and he probably would have died anyway, even if he had been in the ICU (intensive care unit).”  How do you answer that?

Or, you had a spinal operation for a bad back.  Afterward, you developed a wound infection and meningitis, which left you paralyzed and brain damaged.  When asked how this could happen in a modern hospital, under sterile techniques and infection control, the doctor showed your family a booklet published by the American College of Surgeons, stating that 7% of surgical wounds become infected.  The booklet attributes the infections to contamination by the patient’s own germs and does not mention medical malpractice as a possible cause.  He told the family that it was just your bad luck to be one of the 7%, and your infection was not anyone’s fault.  You probably brought the germ into the hospital with you.  True or false?

A woman goes to a doctor’s office several times over a period of months, complaining of a lump in her breast.  The doctor does not do any diagnostic tests and tells her not to worry.  Two years later, she goes to another doctor who discovers she has breast cancer, and it is inoperable.  Cancer is an insidious disease, and no one can say for sure that it will not spread, even if treated aggressively in its very earliest stages.  So, the doctor says, “How can you prove that she could have been cured two years ago?”  You can’t.  Not even the best cancer specialist can.  You can give statistics and percentages, but no one can say for sure that that particular case could have been cured.  So, what do you do?

Are these explanations valid defenses?  Do they destroy your case?  Do you have to show beyond a reasonable doubt that the doctor’s malpractice was the only cause of your injuries?

The Old “But For” Rule

In the past, medical malpractice cases and dental malpractice cases came under what lawyers call the But For Rule, which said the doctor was only liable if the bad result would not have occurred, but for his negligence.  In simple terms, that meant the plaintiff had to rule out all other possible causes of the injury and show the bad result was 100% the doctor’s fault.  That was often impossible, except for the most flagrant malpractice.  In all the cases listed above, it would have been easy for the doctor to slip off the hook, by raising doubts and questions and demanding that the patient perform the impossible task of disproving all other possible causes.

Medicine and Dentistry are complex, and it is not often that you can nail anything down with 100% certainty or say that any single thing caused a good or bad result, especially with modern medicine and dentistry where different doctors and hospital personnel may be giving a patient several different treatments at the same time.  Who is to say just who was responsible for what?  Under that doctrine, all a doctor had to do was raise doubts and claim that some other person was partly responsible for the bad result, or that some other disease might have caused the injury, or that the outcome might have been the same, even if he had not committed malpractice and had done everything right, and he was home free.

We will discuss the new Substantial Factor Test in our next blog post.

An Illinois man went to a hospital ER after being hit in the head with a bottle during a bar fight. He was belligerent, staggering, confused, and had slurred speech. The doctors thought he was drunk and did not pay much attention to him. They a

llowed him to sign himself out against their advice. He went home; his family put him to bed to sleep it off. In the morning, they could not wake him. He was rushed back to the hospital where it was found that he had been suffering from a skull fracture and brain injury and was not drunk at all. He could have been saved when he first went to the ER, but by the time he returned to the ER, the pressure on his brain had caused an irreversible coma and he died.

His family sued the hospital, claiming he should never have been allowed to leave the hospital without a thorough work-up, which would have revealed the head injury and allowed surgeons to save his life. The hospital claimed contributory negligence, because the patient had signed himself out of the hospital against medical advice. The court said his action was not negligent, because it was not willful. In his confused mental state from the brain injury, he did not realize what he was doing.

A Florida man suffered a broken leg in a motorcycle accident. It was set incorrectly in the hospital. He ended up permanently lame due to a crooked leg. When he sued, the doctor moved to have the lawsuit dismissed because of contributory negligence. The doctor claimed the bad result of his treatment had been made worse, because the patient had been too active while still in the cast. The Florida court refused to dismiss the case, because the contributory negligence had occurred long after the doctor's malpr

actice in setting the leg. However, it did reduce the amount of the jury award, because the man had actually tried to play football, and his activity made the results of the doctor's malpractice much worse.

It is not contributory negligence, if you dismiss a doctor who has lost your confidence. You certainly do not have to continue following the advice of a doctor, if you think he is not handling your case right. If that happens, and you are not in a hospital, you simply go to another doctor. If you are in a hospital, you should ask your doctor to call in a qualified consultant. If your doctor refuses to call in another doctor, ask the hospital administrator to intervene. If he refuses, call your lawyer. You are always entitled to a substitution of doctors, if a qualified substitute is available.

The Effects of Contributory Negligence on Your Case

Contributory negligence can have two effects on a medical malpractice lawsuit or dental malpractice lawsuit. First, if the defense lawyers can show that your willful conduct seriously influenced the outcome, they can ask the judge to dismiss your complaint. Second, they can use it to persuade the jury to rule for the defendant. If the jury decides your actions were 50%, or more responsible, it will probably award you nothing.

An Indiana man suffered severe chest pains while playing tennis. He went to a hospital ER where an ECG (electrocardiogram) showed signs of an early heart attack. Hospital admission was advised but he refused and left the hospital against medical advice. Later that day, he resumed playing tennis and dropped dead on the court. The widow's malpractice suit against the hospital for failure to use more vigorous persuasion was dismissed, because of her husband's contributory negligence in ignoring the advice of the ER doctor.


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all claims courts. The legal paperwork alone costs more than that. But malpractice lawsuits can be brought and settled successfully for as little as $5,000, if handled by a competent lawyer. They are what is known as “nuisance suits” and are usually not worth taking to trial.

It can cost the doctor’s malpractice insurance company $5,000 just to set up the paperwork to defend even the most trifling case and another $10,000 to $20,000 in legal fees and costs if it goes to trial. In addition, malpractice insurance companies always worry about the possibility that a sympathetic jury might give an outrageous award, like the New York jury that gave a woman $200,000 for a cracked bone in her foot.

However, since the chances of winning enough to cover your expenses of going to trial are slim, they do not justify you spending much money or your lawyer doing much work either, and you may even have difficulty finding a lawyer who is willing to accept your case. The lawyers on both sides like to settle small cases for something less than the cost of a trial. They are usually good for a small settlement in the $10,000 to $15,000 range. But, if you become greedy and insist on going for a lot of money, you will probably lose everything.

You should always take your lawyer’s advice regarding the value of your case and not be misled by news stories of enormous awards in malpractice cases. The reason for this is that the occasional big verdict in a malpractice case always receives a lot of publicity. But, you rarely hear about all the plaintiffs who did not win. Being greedy can be a fatal mistake in a malpractice case.

The three important points to remember about trivial or nuisance value claims are:

1. There must be a clear case of malpractice, so you have a good chance of winning something if you go to trial, especially if your injuries were not serious or your financial losses were small.

2. Your injuries were not severe or only temporary. Perhaps the doctor set a fracture wrong, causing some pain and suffering for a few days or weeks before it was corrected, but the final result was good.

3. Your financial losses would not have been over $15,000, even if your medical bills had not been paid by insurance. A jury is not likely to give you much more than you spent.


You have been treated badly. The doctors and nurses have been rude and insensitive. Is that good medical care? No, but it will not win your malpractice case. You have to show actual malpractice caused an injury. You must show there was a departure from good and accepted practice, and it caused you substantial suffering or damages. Rude and insensitive treatment does not equal malpractice.

Maybe you think you will receive a huge verdict in excess of the doctor’s insurance and ruin him financially. Not so. The courts are not going to take away a doctor’s lifetime savings just because he made a mistake. That does not make him a criminal. Even if the jury gets carried away, the judge will probably reduce the amount of the award by what lawyers call Remittitur. Awards in excess of a doctor’s insurance policy are rare and only given in cases of outrageous and offensive conduct by the doctor. So, do not sue a doctor to get even or ruin him financially. It cannot be done. All you can expect is financial compensation for your suffering and financial loss.

Clean Up the Medical Profession

You do not care about the money, but you want to get the doctor out of the medical profession so other people will not have to suffer what you went through. Is that how you feel? You may even have read about how doctors and patients should help in getting bad doctors out of the profession. There is only one problem. It will not work. Even if you win your case, it is not going to affect the doctor’s license to practice and medical societies have little control over doctors.

The Board of Medical Examiners in each state controls medical licenses, and you can file a complaint with the board. But, it usually will not do you any good. Their job is to discipline doctors, not to help you. Cleaning up the medical profession is the job of licensing authorities and the medical establishment; it cannot be accomplished through malpractice suits.

Counter Sue the Doctor for His Bill

The fact that a doctor has overcharged you is no reason to initiate a malpractice lawsuit. The cost of litigation can be many times the doctor’s bill, and even if you win, you are likely to end up with just the amount of the bill being forgiven and not have enough left over to pay your lawyer. Disputes over doctors’ fees are best handled in small claims court or by your lawyer, just like any commercial dispute.

However, if a doctor sues you for his bill and you do not want to pay it, because his services were not satisfactory, you can counter sue in what is called an Affirmative Defense. In some states, you can only counter sue for the amount claimed against you; other states do not limit the amount you can ask for. Either way, it can be an effective means of getting the doctor to reduce or withdraw his bill. Insurance companies do not like doctors who get themselves sued by squeezing patients for money.

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