In Determining When Your Medical Malpractice Case Has Merit, expert witness Barry E. Gustin, MD, MPH, FAAEM, and primary founder of the American College of Forensic Medicine, writes on strategy in medical negligence cases.
To summarize … consider not taking medical negligence cases in the following instances:
6. The defendant is a well-known and highly respected physician that most reputable medical experts refuse to testify against. It will be very difficult to find an appropriate expert; and even if one is found, because of the defendant’s standing in the medical community, it may be more difficult to obtain a judgment against him. Also, if the procedure, treatment, or medical subspecialty is rare, then it will be very difficult finding a medical expert witness to testify.
7. The case hinges only on informed consent or misrepresentation issues. This often pits the health care provider against the plaintiff in terms of credibility and honesty. Furthermore, it will be difficult to convince a jury that the plaintiff would not have agreed to the procedure or treatment if properly informed of its risks.
8. If the issue of causation can not be satisfactorily established. Cases will be lost in these situations even when care was grossly negligent.
9. A plaintiff has exacerbated the damage by not following the physician’s instructions. For example, did the plaintiff add to the damage by walking on a leg despite non-weight bearing orders?
10. When a shortened life-expectancy existed anyway from non-related conditions. For example, even though a 40 year old man bled to death on the operating room table due to physician error, this patient had terminal lung cancer and a very short life-expectancy.