Those pushing for laws that would take away rights of patients who suffer medical malpractice often paint the picture of a civil justice system run amok. If one believed all those claims, they might believe that plaintiffs who filed suit almost always won big settlements or massive verdicts every time.
Of course, this skewed portrait bears little resemblance to reality. The fact is that the civil justice system gives the benefit of the doubt to the defendants. The burden in these cases is on the patients (or their family) to prove that it was more likely than not that medical negligence occurred. This task is made even more complicated by the challenges that come with collecting enough evidence to show that mistakes were made. At the end of the day, it is easier to beat back any legal challenge (even ones with clear merit), than it is to navigate through the system all the way to trial and to earn of verdict.
Even if the case goes to trial, doctors and hospitals are often successful in convincing the jury that their is not a preponderance of evidence to prove that malpractice occurred.
Take, for example, a case discussed last week by The Dispatch. The med mal case stems from the death of patient in 2007. The wrongful death suit was filed by the man’s family in 2009, naming five defendants–two doctors, the county, and various medical facilities.
According to documents filed with the court, the patient entered the medical facility complaining of stomach pain that extended around his back. According to reports, he was given a CT scan. The goal was to rule out the presence of an “aortic aneurysm.” The aneurysm was not seen, but the doctors did see a gallstone. The man soon has his gallbladder removed.
Yet, the surgery was tough on the man, and he ended up dying about a week after the gallbladder removal surgery. The suit claimed that this rapid deterioration was caused by an infection that the man received. The plaintiff claims that he did not receive the antibiotics that he needed to deal with the problem. In opposition, the defense had an expert testify that the complications were not due to an infection by severe atherosclerosis disease. It was this rare disease, not an untreated infection that caused the death.
The jury was forced to weigh the testimony of both experts and other evidence to decide what they thought occurred. Last week the jury in the case returned a verdict in favor of the doctor. A few of the other defendants were voluntarily dismissed missed from the suit earlier, but one defendant remains. It is unclear what the plaintiffs plan to do following this verdict.
This case is a good demonstration of the effect of the presumption in favor of the defendant. For example, in this case, the jury may have decided that the evidence was 50-50, without any clear preponderance one way or another. Both experts may have been convincing. But, because the burden is on the plaintiff to prove negligence, when the jury is split 50-50, they are required to rule in favor of the defense. It doesn’t mean there was no negligence, it just means that the jury could not confirm it with enough outside material evidence.
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