Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or
republication without prior permission from the publisher.
The handling of a medical malpractice case is unique in the practice of
law. Although there is some kinship to cases involving legal
malpractice, architectural malpractice, accountancy malpractice and even
products liability (sometimes called "manufacturer's malpractice"), in
medical malpractice, often there is a vast array of players in the act.
The talents of these players can vary considerably. In what appears at
first to be surgical malpractice, one may find that the surgeon was in
fact brilliant, and it was the anesthesiologist who was incompetent. In
the next case there may be an incompetent surgeon and a brilliant
anesthesiologist. Nurses, of course, also vary in ability, from a scale
of "minus one" to "plus ten."
An important step in screening a medical malpractice case is to check
the credentials of the health care providers who might become defendants
in the lawsuit. More that fifty percent of the medical practitioners in
the United States are board certified. This means that they have taken
approved postgraduate training and have passed an examination required
by the particular specialty board. When a physician holds himself or
herself out as a specialist, in most cases it is safe to assume that he
or she is board certified and has acquired the training and skills
ordinarily possessed by physicians in good standing in the community who
practice the same specialty. But when a nonboard certified physician
holds himself or herself out as a specialist in a particular field,
there is a strong inference that that physician does not possess the
training and skills that should be possessed for that field, and if that
physician is involved in an "untoward event," lack of training and skill
just may be the cause.
Some hospitals grant staff memberships to board certified specialists
only, and usually such hospitals have a good reputation in the community
and within the medical profession. Hospitals with willynilly policies on
granting staff memberships ordinarily do not have a good reputation, and
if there is an untoward event, it might be explained by this laxity in
In determining who should be made a defendant, it should be borne in
mind that any physician or other party, including hospital personnel,
who has contributed to the client's injury should be joined as a party
to the lawsuit. At the same time, care should be exercised to not
unnecessarily join an individual if he is innocent of wrongdoing, and if
he has not participated in a conspiracy to protect the actual wrongdoer.
Collateral, remote, and innocent persons should not be subjected to a
I do not rule out a defendant merely because he or she does not have
malpractice insurance. I will still go after them. Personally, I believe
it is immoral for a physician to be in a position to injure someone and
not be able to pay the damages. I had a case in which I represented a
lady who awoke from anesthesia to find her plastic surgeon fondling her.
The surgeon, who had also performed the operation poorly, had no
malpractice insurance. We won a $500,000 verdict and collected $350,000
of it from the defendant by forcing the sale of his office building and
On the other hand, in evaluating your defendants, be on guard for the
Marcus Welby type of personality. Some doctors, and even some hospital
administrators, have such a forthright and wholesome appearance that
jurors will not believe that they can be capable of wrongdoing. And, of
course, the opposite is true: if you have an unattractive, "schlocky"
defendant, you will have a lot going for you in a jury case.
In cases in which there has been a serious drug reaction, it is often
necessary to join the drug manufacturer as a party defendant. (See
Section 25.11 herein.) Attorneys who expect to handle medical
malpractice matters should subscribe to and keep current the Physicians'
Desk Reference (PDR), published by Medical Economics Company of Oradell,
New Jersey. PDR is a compendium of most of the ethical drugs prescribed
in the United States. Listings on these drugs in PDR include information
on dosage, precautions, contraindications, side effects, and the like.
Also, the manufacturer of the drug is identified.
In numerous cases, a physician will claim that a patient had an
idiosyncratic reaction to the drug, but it may be that the physician
prescribed an incorrect drug, or violated the manufacturer's
recommendations regarding usage or dosage of the drug. Also, the
manufacturer may have failed to warn of certain hazards of the drug, or
misrepresented its effectiveness.
Should a drug manufacturer, the maker of a medical or surgical device,
or the manufacturer of surgical or hospital equipment, be made a party
defendant to the lawsuit, theories of strict liability in tort, specific
acts of negligence, and breach of warranty must all be considered.
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