Medical Malpractice Defense Points Not Usually ConsideredI 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.
3) 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.
4) 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.
The 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.
5) 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.
No 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, and male.
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 bad.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.