Areas of Our Practice
Medical Malpractice
Introduction
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 Court constitutional.
In addition, the Ohio Supreme Court recently
heard oral arguments regarding the
constitutionality of the $250,000.00 cap on
non-economic damages in claims against political
subdivisions (see R.C.§2744.05). 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. At Alton & Barclay, we
have access to the leading medical experts
throughout the country in every field of
medicine, not only based on more than 100 years
of collective experience of our attorneys, 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, the lawyers of Alton & Barclay retain
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.
Alton & Barclay’s attorneys have
spoken more than 50 times at seminars to
lawyers, judges, physicians, and other
professionals the most recent of which is
entitled “Anatomy of a Medical Malpractice Case”
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