Medical malpractice claims are among the most expensive to pursue. Since most claimants cannot afford to fund the costs associated with pursuit of a claim, the few attorneys willing to evaluate and pursue such claims must have the financial wherewithal to advance the expense for filing fees, depositions, expert witnesses, travel, medical illustrations, power point, etc. John Alton files lawsuits only when he believes based on his expertise and experience that the odds are in favor of my client in resolving the case favorably by settlement or jury trial.
Physicians, hospitals and their liability insurance carriers paid millions of dollars to lobbyists to persuade the Ohio Legislature in 2003 to place a caps on the amount of damages those injured by medical malpractice could recover in medical malpractice claims. The liability insurance companies represented to physicians and hospitals that their premiums for malpractice coverage would substantially decrease if those injured by medical malpractice would not be able to recover more than $350,000.00 for non-economic damages, such as pain and suffering, loss of enjoyment of life and affect of physical health. Ohio Legislators were persuaded by those lobbyists and instituted such caps in April 2003 which have placed in a chilling effect on the numbers of medical malpractice law suits in Ohio. Although medical malpractice filings have decreased 65% since then, the premiums charged by liability insurance companies for medical malpractice coverage have not decreased much to the chagrin of the physicians and hospitals.
The myth perpetuated by the lobbyists for the physicians, hospitals and liability insurance companies defied the data and statistics. Physicians have never consented to settlements of frivolous lawsuits. In addition, to contend that medical malpractice liability insurance carriers issue settlement drafts to resolve frivolous lawsuits insults their intelligence. Throughout the United States the medical profession wins at least 90% of the cases which proceed to trial against doctors and hospitals. Even prior to the 2003 “tort reform”, doctors and hospitals won at least 80% of jury trials.
Although the lid on non-economic damage recovery clearly violates the equal protection clause of the United States Constitution, the odds of the Ohio Supreme Court (as presently comprised) of holding that the statute is unconstitutional are slim. A similar statute enacted in April 2005 placing caps on non-economic damages in personal injury cases was recently ruled by the Supreme Court constitutional.
Affidavit of Merit
In July 2005 the Ohio Supreme Court enacted Civ R. 10(D) which requires that an Affidavit of Merit be signed by a medical doctor and filed contemporaneous with a medical malpractice lawsuit. The Affidavit must that the physician has reviewed the medical records from which he formed an opinion that not only did the physician or medical care provider deviate from accepted standards of care, but also that the patient was injured as a result thereof. In addition, a medical malpractice case may not proceed to trial unless supported by a physician expert who devotes at least 75% of his professional time to the active clinical practice of medicine in the same specialty as the medical care provider alleged to be negligent.
Standard of Care
In every state, there are statutes which set forth the “rules of the road” applicable to driving a motor vehicle. For example, if one goes left of center or fails to stop at a red light, one is negligent per se.
There are no similar clear cut “rules of the road” regarding the practice of medicine. Yet, the law requires that the patient provide expert testimony regarding whether the medical care provider “deviated from accepted standards of care”. Since there is no “cookbook” setting forth standards of care applicable to a particular medical specialty, the attorney filing a medical malpractice case must retain an expert reputable in the particular area of medicine who can testify concerning the standard of care based on his education, training and experience. Since medicine is as much an art as it is a science, the customary defense in these cases is that there is more than one way of treating a patient which complies with the “standard of care”.
Thus, in medical malpractice cases more than any other type of case, selection of the expert is the key to the case. John Alton has access to the leading medical experts throughout the country in every field of medicine, not only based on more than 30 years of experience, but also from a review of various publications of results of medical malpractice cases which provide the names of experts in the various medical specialties involved therein. In addition, John Alton retains medical illustrators to assist the jury in understanding the medical issues and those skilled in power point to provide the jury with the opportunity to see the medical records and reports which are relevant to their evaluation of the issues.
Speeches and Articles
John Alton has spoken more than 40 times at seminars to lawyers, judges, physicians, and other professionals and written articles regarding medical malpractice, the most recent of which are entitled “Anatomy of a Medical Malpractice Case” and “Theobald v. University of Cincinnati: The Duty to Dually File Medical Claims.”
- ANATOMY OF A MEDICAL MALPRACTICE CASE
- THEOBALD v. UNIVERSITY OF CINCINNATI: THE DUTY TO DUALLY FILE MEDICAL CLAIMS