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3 Potential Defenses for a Medical Malpractice Case

May 3, 2021
Group of Doctors — Los Angeles, CA — Spiga and Associates

If you are a doctor, you know the importance of medical malpractice insurance. However, even with insurance to carry the cost, you don't want that terrible mark on your record if you didn't do anything wrong. If you would like to learn more about how to defend yourself, keep reading to learn about three defense strategies for medical malpractice cases.


Rejection of Expert Testimony

Unlike regular witnesses, an expert witness has certain knowledge, experience, and education that makes thema valuable resource to help the plaintiff or the defendant. However, one possible defense strategy for your medical malpractice case is to identify any unqualified experts and inadequate expert testimony. You and your attorney can do this in many ways.


First, you can have testimony thrown out based on Daubert factors. This means that the witness did not meet the criteria needed to establish certain admissibility criteria. Typically, the criteria ensure experts must have proven examples, tests, standards, and error rates before they use any stats or examples for their testimony.


Naturally, an expert can also be disqualified if they are not qualified. In addition, the expert must stick to the scope of their expertise. An expert at pharmaceuticals can talk about how a pharmaceutical has side effects that may affect mental health, but they can't then give expert testimony on mental health or the state of your mental health.


In some cases, the expert's testimony is not helpful in determining who is at fault. In the above example, if the pharmaceutical expert only talked about statistics on how many doctors prescribe the wrong medication, the courts will likely toss it out since it can't be used to determine your specific case.


Reduction of Damages

In a malpractice case, the plaintiff needs to prove they sustained damages due to the negligence. Damages usually refer to medical bills, lost income, lost future income, pain and suffering, or ongoing medical bills. However, if you can prove the plaintiff is lying, you may get a reduction or elimination of damages.


One of the best ways to prove the plaintiff is lying about their injuries is with social media. A good attorney will have private investigators look at all social media sites to look for evidence that can help. Perhaps the plaintiff complains they can't walk for long periods of time now, but the investigator finds photos of a recent hike they took up a mountain.


You may also be able to have damages reduced if you can prove the plaintiff didn't mitigate damages. If a patient was hurt by negligence but refused to seek treatment (or they didn't follow through with treatment prescribed by a doctor), your attorney can argue they weren't that injured if they didn't bother to continue treatment.


Absence of Causation

To be responsible for a patient's damages, you must have caused themwith your negligence. This can be easy to prove thanks to medical records, but you can just as easily disprove this with medical records. With the pharmaceutical example, imagine you prescribed the corrected medicine, but the pharmacist filled the wrong medicine. If you can prove this, you prove you didn't cause the damages.


In addition, even if you are at fault for some damages, the chain of causation may have been broken. This happens when an unforeseeable event occurs that worsens the injuries. Your lawyer can help you trace the defendant's injuries to the source.


Medical malpractice happens all the time, but if you did nothing wrong, you shouldn't be punished. Luckily, there are many defenses to medical malpractice lawsuits. If you would like to learn more about medical malpractice, or if you need to defend your license, contact us at Spiga & Associates today.

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CALIFORNIA PHYSICIANS DEFENSE ATTORNEY: SCHEDULE II SUBSTANCES

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You see him or her on your television, in your professional journals, and on your home page . . . the “Poster Child.” The Physician existing on the fringe of the profession, who gets arrested for overwriting prescriptions for Schedule II substances . Their example is easy to dismiss. The average M.D. engaged in legitimate practice seemingly has nothing to worry about. This fate befalls the slacker, the greedy, the foolhardy. Don't be so sure, any M.D. who prescribes Schedule II substances as a regular part of their practice is only one adverse patient outcome away from California Medical Board and possibly criminal investigation. For example, Surgeons and Physicians practicing in Emergency Medicine, Oncology, and Pain Management, routinely write hundreds, if not thousands of prescriptions for Schedule II substances. There is no way for a Physician to control the patient’s use of controlled substances, yet a dangerous and influential myth is being propagated that a physician is a fortune teller and can predict which patients will misuse the substances provided. Further complicating the issue is the difficult ethical landscape navigated by Physicians dealing with patients presenting legitimate symptoms demanding treatment with Schedule II and III substances, but who are nevertheless, drug dependent. Long term pain management patients are at particular risk of overdose due to their high tolerances leading to increasing dosages and the difficulty in weaning them off the substances they have become dependent upon. Should a patient die or suffer an adverse outcome that is somehow connected to a prescription for a schedule II substance, a criminal and California Medical Board investigation is sure to follow. Oftentimes the investigation will be spearheaded by investigators for the California Department of Consumer Affairs working in conjunction with local law enforcement but who also work on behalf of the Medical Board of California. These investigators are sworn peace officers and have the power to arrest and working with the Attorney General or local District Attorney also have the ability to bring criminal charges against a Physician. These investigations start out invisibly with scrutiny of CURES II reports detailing a Physician’s prescription history. All patients receiving scheduled substances will be given particular attention. Soon after, the physician will receive a request for patient records, followed by a letter of investigation from a California Department of Consumer Affairs Investigator indicating that a complaint has been made and requesting an interview. They do not inform the Physician of his or her right to counsel or whether the Physician even has the right to refuse the interview. Nor do they inform him or her of their right to review the complaint. Believe it or not, one of the common mistakes Physicians make in dealing with these investigations is not taking it seriously. They will delay responding or not respond at all. Often Physicians confident in their prescribing practices will have a false sense of confidence going in to such an interview and will wing it without consulting consul. Those Physicians learn the error of that approach through hard experience. If you are facing such an inquiry. Take it very seriously, Your medical license is your most important asset. If you have an adverse patient outcome that has come to the attention of your Hospital Administration, The Medical Board of California or local law enforcement, call Spiga and Associates immediately. Because of our 25 years of experience in both Criminal and Administrative defense we are uniquely qualified to defend you and your medical license.
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