Anatomy Of A Medical Malpractice Lawsuit

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1 Anatomy Of A Medical Malpractice Lawsuit Brian D. Goldwasser White, Getgey & Meyer Co. LPA One West Fourth, Suite 1700 Cincinnati, OH (513)

2 2011 Closed Claims Report From Department of Insurance

3 Statistics in ,094 Closed Claims 65% of cases were dismissed without payment 5% dismissed by summary judgment 22% settled 3.4% tried to a defense verdict 0.68% tried to a plaintiff verdict

4 2011 Closed Claims Average settlement: $261,000 Average plaintiff verdict: $414,000

5 2011 Closed Claims The highest average indemnity was Southwest Ohio: $366,000 The lowest average indemnity was Central Ohio: $190,000

6 Has Tort Reform Had An Impact? Total number of claims has drastically been reduced The average indemnity has been reduced

7 Average Indemnity Payments 2005: $282, : $288, : $235, : $205, : $258, : $175, : $218,000

8 How long do I have to file a medical malpractice case?

9 Statute of Limitations An action upon a medical, dental, optometric or chiropractic claim must be commenced within one year after the cause of action accrues. ORC (A)

10 When Does the Statute of Limitations Commence? Upon the latter of the following: The date of negligence The termination of the physician-patient relationship for that condition When the patient discovers or, in the exercise of reasonable care and diligence, should have discovered the resulting injury.

11 How is the Discovery Date Determined? 1. When the injured party became aware, or should have become aware, of the extent and seriousness of his condition 2. Whether the injured party was aware, or should have been aware, that such condition was related to a specific professional service rendered, and 3. Whether such condition would put a reasonable person on notice of a need for further inquiry as to the cause of such condition. Hershberger v Akron City Hosp. (1987), 34 Ohio St.3d 1.

12 180 Day Letters The statute may be extended by 180 days if written notice is provided within the statute of limitations ORC (B)(1) Each defendant MUST be served separately The plaintiff has the burden to prove that each defendant was served

13 Tolling of the Statute Tolled for minors Tolled for incompetents Loss of consortium claims are tied to the tolling

14 Statute of Repose 4 Years!? But there are exceptions Minors and incompetents Retained object cases (knew or should have known)

15 What do I need to do to pursue a medical malpractice case?

16 Criteria You must have an affidavit of merit from an expert Or a motion for extension of time to obtain an affidavit Failure to have an affidavit will result in dismissal without prejudice

17 Causes of Action Medical Malpractice Informed Consent Wrongful Death Fraud Spoliation Wrongful Pregnancy

18 What is Medical Malpractice? 1. Define the prevailing standard of care for physicians practicing the same specialty 2. A departure from the standard of care 3. A probability that injury resulted from the departure. Bruni v Tatsumi (1976), 46 Ohio St.2d 127

19 What is Informed Consent? 1. The medical provider failed to disclose and discuss the material risks and dangers inherently and potentially involved with a procedure 2. The risks and dangers that should have been disclosed actually occurred and proximately caused injury 3. A reasonable person in the plaintiff s position would have decided against the medical treatment if the risks and dangers had been disclosed. Nickell v Gonzalez (1985), 17 Ohio St.3d 136

20 What is Fraud? 1. A representation or concealment where there is a duty to disclose 2. Which is material to the transaction at hand 3. Made falsely with the knowledge of its falsity or with utter disregard and recklessness as to truthfulness 4. With intent to mislead 5. Justifiable reliance upon the representation or concealment 6. Injury from the reliance. Gaines v Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54

21 What is Spoliation? 1. Pending or probable litigation involving the plaintiff 2. Knowledge by the defendant that litigation exists or is probable 3. Willful destruction of evidence by defendant designed to disrupt the plaintiff s case 4. Disruption of the plaintiff s case 5. Damages caused by the defendant s acts. Moskovitz v Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638

22 What is Wrongful Pregnancy? Child born after negligently performed sterilization parents can recover the costs associated with delivery. Johnson v Univ. Hosp. of Cleveland (1989), 44 Ohio St.3d 49

23 What Claims Do Not Exist or Have Limitations? Wrongful life. Hester v Dwivedi (2000), 89 Ohio St.3d 575 Wrongful birth. Entitled to bring suit for the costs of care of an impaired child. Schirmer v Mt. Auburn Obstetrics & Gynecologic Assoc., Inc. (2006), 108 Ohio St.3d 494

24 Potential Misc. Claims Lost chance of survival. Roberts v Ohio Permanente Med. Group, Inc. (1996), 76 Ohio St.3d 483 Decision or settlement of negligence claim does not bar later wrongful death case. Thompson v Wing (1994), 70 Ohio St.3d 176

25 Important Considerations when Deciding to take the Case Plan on every case going to trial! What is your client like? How significant are the damages? How many physicians/providers are implicated? What are the defendants like? How many experts will be needed? How much will it cost?

26 Expert Requirements Actively engaged in the practice of medicine In the same specialty as the Defendant More than 50% or 75% of time devoted to active clinical practice of medicine to render standard of care opinions Experts are required for proving every element of your case

27 How to Find Experts? Up to Date Medical Publications Universities Colleagues Referrals from treating physicians Opposing counsel Google

28 What Should I Expect at Trial?

29 Common Defense Themes

30 Common Themes Reasonable care. Not excellent care The train had already left the station We treat patients, not text books The plaintiff is applying the retrospectoscope S..t happens Empty Chair

31 Help the Jury Understand the Medicine

32 Colon Cancer September 8, 2009 April 8, 2010

33

34 Damages

35 Economic v Non-Economic No cap on economic damages 2 tier cap on non-economic damages No cap on wrongful death damages

36 2 Tier Damage Caps $250,000 or three times economic not to exceed $350,000 $500,000 for catastrophic cases: loss of limb, loss of organ system, permanent and substantial physical deformity, or injury that prevents an injured party to care for oneself. ORC

37 Apportionment and Set-offs

38

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