What Kind of Medical Malpractice Claims Are Successful in Ohio Courts?
Our friends at Mishkind Kulwicki Law Co., L.P.A. discuss how they are frequently asked what types of medical malpractice claims are successful in Ohio courts. Applying 80+ years of experience, including trying well over 150 cases to verdict, we have answers. We start by pointing out that self-insured hospitals and liability insurance companies aggressively defend medical negligence claims. Their success rate is undeniable. The Ohio Department of Insurance reports that about 70% of medical malpractice trials result in defense verdicts, meaning a verdict in favor of the healthcare provider. This success rate in defending claims has emboldened self-insured hospitals and professional liability insurance companies to defend claims, including claims that are meritorious. They fight back and, often, they fight dirty. An experienced medical malpractice lawyer can help level the playing field by building a strong case, challenging defense tactics, and advocating for fair compensation on behalf of injured patients.
Part of the defense’s success lies in the fact that jurors who sit in judgment on malpractice claims are not likely to have medical backgrounds. Jurors typically have very little medical or scientific knowledge and usually know very little about how the human body works. With this backdrop, the defense can often muddy the waters at trial with false or misleading testimony from medical experts, so that jurors are uncomfortable finding in favor of the patient.
For medical malpractice lawyers, case selection is an important part of the business side of running a trial practice. Medical malpractice litigation can cost a law firm easily $50,000 to $150,000 in time and expense per case. Given the risk of losing at trial at 30% or so, medical negligence lawyers carefully vet the cases that they do pursue in order to avoid financial ruin.
So, what cases do carry a higher rate of success? Cases that are most likely to settle or prevail at trial fit into several broad categories. Generally, we are looking for cases that are easy for a jury to understand and not steeped in complex medicine. For example, cases where test results, like an abnormal x-ray or biopsy result, are not reported to the patient are easily understandable by jurors.
Another category of case that can be successfully handled involves a delay in diagnosis of a medical condition that results in a bad outcome. Frequently, post-operative complications like bleeding or infection are considered to be “known and accepted risks of the procedure” that are covered by the consent form. However, when these complications occur but they are not diagnosed and treated in a timely manner, resulting in permanent injury or death, the case should be investigated to see if the bad outcome should have been avoided with proper care. Often, these critical times after surgery are monitored by inexperienced nurses and residents who fail to understand the severity of a developing post-op complication.
Other common malpractice cases involve the so-called “never events.” In the early 2000s, the Centers for Medicare and Medicaid created a list of events that should never occur with proper care. Many of these never events are intuitively the result of negligence, so more easily understandable by jurors. Some never events include retained foreign objects (i.e, surgical towels, sponges or tools left inside a patient), wrong site surgery, wrong side surgery, surgery on the wrong patient, patient suicide in a facility, sexual assault, medication errors, and patient death due to failed equipment, electrical shock or fall. Similarly, the Joint Commission, a hospital accrediting agency, publishes Sentinel Alerts meant to alert hospitals to common problems that result in patient harm. One such Sentinelk Alert warned hospitals about the risk of over-sedating patients with strong opioids, like Dilaudid, when used in connection with other drugs that potentiate the opioid or in patients with sleep apnea which increases the risk of over-sedation. Failure to implement policies to avoid these hazards may provide grounds for a successful malpractice suit.
One other type of provable medical error involves damage to surrounding structures during surgery. In some instances, injury to surrounding structures is an inherent risk of the procedure. But, in other cases, injury can be avoided through proper technique and identification. The adage, “you don’t cut what you can’t see,” applies here.
While this list is not exhaustive, it is illustrative of the types of cases that our firm would be willing to investigate. When medical attention results in unexpected death or disability, it is worth contacting a malpractice lawyer for advice.