Medical Malpractice Defense Points Not Usually Considered
I am not a lawyer, but
I know where they live. Matters are 100 times worse than any one
realizes with the lawyer profession.I would want to make the following
defense points. I would appreciate knowing any lawyer rebuttal.
1) Four Elements that must be proven in a tort case.
Injury Caused by Breach
2) Even lawyers forget the fifth. Unforeseen intervening cause. Any
plaintiff conduct remotely related to the injury should be brought up,
and a motion to dismiss should be made at every procedural step.
Examples, smoking, non-adherence, family effects, outside stress.
In terms of breach due to a deviation from professional standards of
due care, the courts will allow minority views in a subject that is not
completely settled, and no medical subject is completely settled.
The tort is based on a theory of chain of causation. Great in the 13th
Century, total lawyer quackery today. Lawyer quackery violates the Fifth
Amendment procedural due process right to a fair trial of the
defendant, even in a tort case.
A doctor sued BMW for a
bad paint job and was awarded $4 million. The Supreme Court affirmed the
Fifth Amendment due process rights of defendants in torts.
current view of catastrophes is that multiple factors cluster in a
space and time, for example 12 of them in an airplane or car crash. The
prevention of any one may prevent the entire catastrophe, often. The
chain of causation is a myth. If followed enough, it ends at the Big
Bang, and the court should try to collect from the entity that caused
the Big Bang. The lawyer is ridiculous and stupid. They start with high
IQ's and end up doing stuff from 1275 AD. I call that stupid, except
they take in $trillion and damage the economy far more than that.
I urge defendants to personally attack the other side, and to share
their own misery with the other side. The most powerful attacks are in
the trial and in motions to the trial judge. Find a factual mistake
anywhere, in the resume of the expert, in the out of court social media
postings of all parties, in depositions. Adjectives and opinions are
legally immune. I think this person is evil, stupid, greedy, etc. All
are adjectives and immunized by the First Amendment. False facts are
criminal and criminality should result in dismissal, and in sanctions,
such as prison, all legal costs to the assets of the perjurer, exclusion
of the testimony, disqualification. Disqualify the plaintiff lawyer,
disqualify the experts, then even disqualify the judge.
defense lawyer will ever do that. You may have to hire a personal
lawyer to terrorize the defense lawyer. The latter makes no money until
reaching trial. They are paid less than HMO doctors, and may actually
lose money on overhead by insurance companies. Your personal lawyer
should also threaten the insurance company for paying the defense lawyer
too little, as form of insurance fraud, or insurance bad faith.
Defendant thought he would getting the Dream Team, from the slick
brochure, got the dead time of losers.
6) If court
tactics fail, try regulatory tactics. File complaints with all licensing
boards, all Disciplinary Counsel. Even if dismissed, the other side
will be spending time and worry in continual investigations. Make it so
no amount of money is worth the plaintiff case. They may have to hire
lawyers to deal with these investigations. File discrimination
complaints, for example, the lawsuit is because the defendant is white,
I find defense lawyers far more detestable
than plaintiff lawyers. That is because they pretend to be on your side,
but are working only for themselves, even if that means hurting your
interests. They are the ones with duties to you. They are the ones with
professionalism. They are the ones who betray both. Legal malpractice
claims have totally insurmountable obstacles, and are a waste of time.
So any understandings can only come before hiring or approval of a
defense lawyer. Bring your personal lawyer with you, in your meeting
with your defense lawyer, as if you were meeting the FBI. It is that
The above apply to the innocent or controversial
defendant. If the defendant is clearly at fault for a serious injury, a
quick settlement is in the interest of the doctor, of the patient and
of the profession. A guilty defendant using the above tactics is abusing
the system, and should be punished for doing so.The overwhelming fraction of medical malpractice defendants are found, not guilty. So most medical malpractice claims are invalid. This is true even in defendant judicial hellholes. In Philadelphia, a true judicial hellhole, 70% of the medical defendants are found, not guilty. The problem is that the cost of litigation has had an impact on health care. Almost all obstetrical wards have closed in Philadelphia, despite the statistic. As a result of lawyer perfidy, a woman is lucky to get a space in the hallway of the remaining services to deliver a baby.