Medical malpractice cases are not easy cases to bring. In addition to the complexity and costs that come with seeking malpractice damages, there may be some elements to the case that do not favor the client. These include the lack of money a law firm may have to bring the case, the length of time it takes before a matter is heard at trial, and the continuing pain and loss of quality of life the patient must suffer through.
Despite these issues, an offending physician (or hospital) may raise a number of defenses to a malpractice claim, which may make things much more difficult. This post will highlight some common defenses that a plaintiff’s lawyer will anticipate and prepare for.
Contributory negligence – A physician, nurse or hospital may argue that the patient is just as responsible for their condition if they did not follow the recommendations given to him or her upon discharge. Sometimes there can be mistakes with regard to discharge orders, but if the patient does not follow them, this may open the door to a contributory negligence defense.
Standards were properly met – A doctor or nurse may also argue that their actions did not fall below the standards of care established for medical professionals in similar situations. In order to win a med mal action, a plaintiff must show that a doctor’s actions fell below the standards practiced by physicians in similar situations. If this element is not proven, the plaintiff loses.
Time limitations – The amount of time allowed to bring a medical malpractice claim generally starts when a patient knows (or should have known) when they have been harmed. If a suit is not brought within the time allowed by law, a defendant could argue that the suit is barred by the statute of limitations.