Medical malpractice is a serious charge that can have devastating consequences for the accused. In this blog post, we will outline some of the most common defences to medical malpractice charges. If you are facing these allegations, it is important to understand your options and how to best defend yourself against the accusations.
Common Defences to Medical Malpractice Suits
Common defences to malpractice claims and suits include: statute of limitations, contributory negligence, foreseeability, informed assumption of risk, broken chain of causation, pre existing injuries, impeachment of expert testimony, respectable minority principle and the Good Samaritan laws.
Statute of Limitations
The first defence to a medical malpractice claim is the statute of limitations. This is a law that sets out the time period during which an injured person can bring a legal action. In most jurisdictions, the time period is two years from the date of the injury.
There are some exceptions to this rule.
- For example, if the injured person was a minor at the time of the injury, they may have longer to bring a claim. Or if the injuries were not immediately apparent, the time period may start from when they should have reasonably been discovered.
- Another exception is if the person died as a result of their injuries. In that case, their family members may have up to two years from the date of death to bring a claim.
The statute of limitations is an important defence for doctors and other medical professionals. It protects them from having to defend old claims where memories may have faded and evidence may no longer be available.
The statute of limitations for medical malpractice claims varies from state to state. In some states, the time limit is as short as one year from the date of the injury. In other states, it may be two or three years. And in a few states, there is no statute of limitations for certain types of injuries, such as injuries to minors or those that result in permanent disability.
Contributory Negligence: The Patient Contributed to the Injury
One of the most common defences to medical malpractice is that the patient contributed to their own injury. This defence is based on the legal principle of contributory negligence.
Contributory negligence is when the plaintiff (the patient) is partly responsible for their own injuries. In order for this defence to be successful, the defendant (the doctor) must prove that the plaintiff’s actions were a significant contributing factor to their injuries.
There are many ways that a patient can contribute to their own injuries. For example, if a patient refuses to follow their doctor’s orders or advice, they may be held partially responsible for any resulting complications. Additionally, if a patient fails to disclose important information about their health history or allergies, they may also be held partially responsible for any injuries that occur as a result.
It is important to note that contributory negligence is not a defence to all medical malpractice claims. In some cases, the court will find that the doctor’s actions were the sole cause of the injury, and the patient will not be held liable. Additionally, in some jurisdictions, contributory negligence is not a defence at all – meaning that even if the patient contributed to their own injuries, the doctor can still be held liable.
Foreseeability
Foreseeability is a key concept in negligence law. It is the legal test for determining whether the harm that befell the plaintiff was reasonably foreseeable to the defendant at the time of their actions. If the answer is no, then there can be no finding of negligence against the defendant.
There are a number of ways in which foreseeability can be determined.
- The first is through case law precedent. If there has been a previous case with similar facts to the one at hand, then a court will likely find that the harm suffered by the plaintiff was foreseeable.
- The second way is through expert testimony. An expert witness can testify as to what a reasonable person in the defendant’s position should have foreseen. This testimony can be helpful in proving foreseeability, but it is not always necessary.
- The third way is through common sense. A court will often look to whether the harm suffered by the plaintiff was something that a reasonable person in the defendant’s position should have foreseen. If the answer is yes, then there can be a finding of negligence against the defendant.
Foreseeability is an important concept in medical malpractice cases. It is often the key factor in determining whether a doctor can be held liable for the harm that befell a patient. If the answer is no, then there can be no finding of negligence against the doctor.
Volenti Non-Fit Injuria: Assumption of a Recognised Risk
“Volenti non fit injuria” is a defence to medical malpractice. It is a Latin phrase which means “to one who consents, no injury is done”. The defence can be raised by a doctor if the patient has given their consent to the treatment.
The defence of volenti non fit injuria is not often successful as it requires the patient to have full understanding of the risks involved in the treatment. In most cases, patients do not have sufficient knowledge to give informed consent.
Even if a patient does have full understanding of the risks, they must also show that they voluntarily assumed those risks. This can be difficult to prove as it requires showing that the patient knew of the risks and still decided to undergo the treatment.
The defence of volenti non fit injuria is rarely used successfully in medical malpractice cases. However, it is important for patients to be aware of this defence as it may be raised by a doctor if they are sued for negligence.
Volenti non fit injuria is not a complete defence to medical negligence. It only applies in certain circumstances where the patient has given their consent to the treatment. Even if the patient has consented, the defence will only be successful if they can prove that they voluntarily assumed the risks involved in the treatment.
In most cases, patients do not have sufficient knowledge to give informed consent and this can make it difficult to prove that they assumed the risks voluntarily. The defence of volenti non fit injuria is therefore rarely used successfully in medical negligence cases.
Broken Chain of Causation: It Wasn’t Me!
You might be surprised to learn that one of the most common defences to medical malpractice is that the defendant wasn’t actually responsible for the plaintiff’s injuries. This defence is based on the legal principle of causation, which requires that there be a causal link between the defendant’s actions and the plaintiff’s injuries.
In order for this defence to succeed, the defendant must show that there was no causal link between his or her actions and the plaintiff’s injuries. This can be difficult to do, especially if the plaintiff has already suffered an injury as a result of the defendant’s negligence. However, if the defendant can show that there was some other factor that caused the plaintiff’s injuries (such as a pre-existing condition), then he or she may be able to avoid liability.
Pre – Existing Injury: The Injury Preceeded The Treatment or Procedure
One of the most common defences to medical malpractice is that the injury pre-existed the treatment or procedure. In order for a medical professional to be held liable, they must have caused the injury through their negligence.
If the patient had the injury before they received treatment, then the medical professional cannot be held liable. This defence can be difficult to prove, however, as many injuries do not have a clear date of onset. It is up to the medical professional to show that they did not cause the injury and that it existed prior to their involvement.
Attacking the Expert Testimony: Rejection of Expert Testimony
In order to prove medical malpractice, the plaintiff must have an expert witness to attest to the deviation from the standard of care. This expert must be qualified in the same or similar field as the defendant. If the court finds that the expert is unqualified, then their testimony will be rejected and the case may be dismissed.
There are three ways to attack an expert witness: direct examination, cross-examination, and impeachment. Direct examination is when the attorney questions their own witness. Cross-examination is when the opposing attorney questions a witness. Impeachment is when an attorney attempts to discredit a witness through their past statements or actions.
One way to reject expert testimony is by showing that the expert is not qualified in the same or similar field as the defendant. The expert must have a certain level of education and experience in order to be considered qualified. Another way to reject expert testimony is by showing that the expert’s opinion is not reliable. This can be done by showing that the expert did not use proper methodology when forming their opinion.
You can as well attack the character of the expert witness. This is done by showing that the expert has a bias or conflict of interest. The expert may also be impeached if they have been convicted of a crime.
The bottom line is that expert testimony is crucial to a medical malpractice case. If the expert witness is not qualified or their opinion is not reliable, the case may be dismissed.
Respectable Minority Principle
This principle states that a doctor cannot be found negligent if a respectable minority of doctors would have acted in the same way, given the same circumstances. In order for this defence to be successful, the accused doctor must show that there was a reasonable body of opinion which supported his or her actions.
This defence can be difficult to prove, as it requires expert testimony to establish what a “respectable minority” of doctors would have done in the same situation. It also places a high burden on the accused doctor, who must show not only that his or her actions were reasonable, but also that there was a significant group of other doctors who would have acted in the same way.
However, the Respectable Minority Principle can be a successful defence in cases where there is truly a divided medical opinion on the best course of treatment. If a significant number of doctors believe that the accused doctor’s actions were reasonable, then it may be difficult for the plaintiff to prove that the doctor was negligent.
Good Samaritan Laws
In the United States, Good Samaritan laws offer legal protection to individuals who render emergency medical assistance. These laws vary from state to state, but generally provide some immunity from civil liability for damages incurred as a result of rendering aid.
Good Samaritan laws are designed to encourage bystanders to help those in need without fear of being sued. However, these laws typically only apply if the individual acts in good faith and does not receive any form of compensation for their actions.
Some states also have Good Samaritan laws that extend protection to individuals who administer naloxone, an overdose-reversal medication. Naloxone can be administered by anyone, regardless of medical training, and can save the life of someone who has overdosed on opioids.
In addition to Good Samaritan laws, many states have enacted legislation that makes it easier for medical professionals to render aid in emergencies. For example, some states have enacted “duty to render aid” laws, which require certain individuals (e.g., police officers, firefighters) to provide assistance in an emergency situation.
As a defence to medical malpractice claims or suits, Good Samaritan laws typically offer protection from civil liability for damages incurred as a result of rendering emergency aid. These laws are designed to encourage bystanders to help those in need without fear of being sued, but generally only apply if the individual acted in good faith and did not receive any form of compensation for their actions.
While Good Samaritan laws offer some protection from civil liability, they do not protect against criminal charges. Additionally, these laws are not a defense to negligence claims. If a person is sued for negligence after rendering emergency assistance, the court will still consider whether the individual acted reasonably under the circumstances.
Which Element of Malpractice is Hardest to Prove?
There are four elements to medical malpractice cases: duty, breach, causation, and damages. In order for a plaintiff to win their case, they must be able to prove all four of these elements. However, some elements are harder to prove than others.
One of the most difficult elements to prove is causation. This is because the plaintiff must show that the defendant’s actions were the cause of their injury. This can be difficult to do if there are other factors that could have contributed to the injury.
Another difficult element to prove is damages. This is because the plaintiff must show not only that they experienced an injury, but also that this injury has caused them some type of loss. This could be financial, emotional, or physical.
What is the best defense against medical malpractice?
The best defense against medical malpractice is to have strong evidence that disproves one or more of the four elements of a medical malpractice claim: duty, breach, causation, and damages. If you can show that the plaintiff does not have enough evidence to prove one of these elements, then you may be able to win your case.
Conclusion
In light of the above, it is evident that there are a number of defences available to practitioners who may be accused of medical malpractice. While each case will differ, and the success of any defence will depend on the specific facts and circumstances involved, these defences can provide a strong argument against liability in many situations. As always, it is advisable to seek legal counsel if you are facing allegations of medical malpractice, as they can help you navigate the complexities of the law and build the strongest possible defence. Thank you for reading.
If you have been accused of medical malpractice, contact an experienced lawyer as soon as possible. A lawyer can review your case and advise you on the best course of action. They can also help you understand the law and build a strong defence. Contact us today to schedule a consultation.
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