LW 4010-03 Medical Malpractice - 3 semester hours

Stated simply, Medical Malpractice occurs when a person suffers severe injuries as a result of a professional's misconduct, failure to use adequate care, or lack of skill. The malpractice general rule is that professionals, including doctors, dentists, medical providers, etc., must act with the level of skill and learning commonly possessed by members of the profession in the same geographic community. A professional will only be liable for malpractice if he acted without the requisite minimum skill and competence, not merely because the operation or procedure was not successful.

It is the attorney's obligation (and the assignment to his/her support staff) to determine as quickly and efficiently as possible whether there is a good, actionable case. This is so because Medical Malpractice cases are by their very nature, complex, expensive to pursue, have a high risk of no recovery, and often involve a client's "personal" attachment. The first step in the process involves the potential client entering into an agreement with the attorney in which agreement sets forth the method of attorney compensation. Typically the attorney agrees to advance all costs, only to be repaid costs in the event of recovery, and to work on a contingent fee basis, that is the attorney would receive a percentage of the gross recovery. Thus, the client will endure no economic loss in the event of no recovery.

During the initial client contact, the attorney and his staff will obtain a detailed medical history during which the attorney should obtain the names of all physicians and hospitals who have rendered medical treatment to the client. It is valuable for a client to prepare a written summary (timeline) of all medical treatment including dates, doctors, symptoms, conversations with medical providers, and treatment received. Thereafter, all relevant medical records are obtained by the attorney. In many medical malpractice cases, proof of negligence is found in these records.

In order to determine if there is "medical malpractice" it is necessary that a medical expert be retained to consult with the plaintiff's attorney. Here expertise on the part of the attorney staff in nursing, medical support staff or other arenas is vital for the success of either the plaintiff or the defendant.

This expert should be well qualified to give a medical opinion, and is therefore frequently board certified in the relevant field of medicine. If, after a thorough review of the pertinent medical records, the medical expert concludes "with reasonable medical certainty that the action or inaction of the defendant physician was the cause of damage to the plaintiff", it is appropriate to file suit against the physician/hospital. Filing suit begins the legal advocacy process which may cover a period of several years. During this period both parties exchange a series of documents. In the first stage, the legal pleading stage, the parties set forth with precision their legal theories. In the second stage called, the discovery stage, the facts to support the various legal theories are developed. If the parties are not able to resolve their differences the case, now in its third stage, and the parties will take the case to trial before a judge and jury.
This intense class will bring the paralegal studies learner face to face with the nuts and bolts of medical litigation and look at both sides of the issue. Any nurse, medical practitioner, or legal assistant wishing to gain knowledge regarding the legal process in medical services is encouraged to take this course.