Why Is It Hard to Prove Medical Malpractice?

In the United States, we are blessed to have a health care system which provides an almost unprecedented level of care. Our country boasts an abundance of professional, capable, hard-working doctors and other medical care providers, along with state-of-the-art hospitals and medical care facilities. In fact, almost everyone can thank a doctor for successfully treating an injury or illness. Unfortunately, some doctors and hospitals negligently cause harm to patients. On such occasions, one might think that it is easy to hold these negligent doctors and hospitals accountable for their actions – but often it is not. In this article, we’ll discuss some of the difficulties.

How Often Does Medical Malpractice Occur?  

This is a really difficult question to answer. However, in a Pro Publica article, the author suggests that every time research is performed on medical malpractice in hospitals, the research results seem to get worse. A Journal of Patient Safety publication (also cited below) concluded that at least 210,000 deaths occur in hospitals as the result of “preventable harm,” but also found that it is more likely that more than 400,000 preventable deaths occur every year. Keep in mind that this study references only hospitals, and does not include other instances of medical malpractice. Even more shocking, the study concludes that “serious harm” (as opposed to death), occurs 10 to 20 times more frequently than lethal harm.

Investigation, Burden of Proof and Cost

Medical care providers rarely admit fault, even when they are negligent. Thus, an injured victim often has no choice but to file suit, which is complicated and expensive. A tremendous amount of medical research and evaluation is required before filing suit. After filing suit, the plaintiff (the injured patient) must prove each element of malpractice by a preponderance of the evidence. This standard of proof means more likely than not. Further, proving medical malpractice requires the assistance of expensive expert medical witnesses.

The Role of Insurance

Most medical care providers carry medical malpractice insurance, which, of course, is positive in many respects. However, the insurance policy generally will provide the negligent provider with a legal defense. As a result, insurance companies often provide multiple well-trained, experienced attorneys for one case, hoping to limit their payment to the injured victim. Additionally, unlike an automobile insurance policy, which allows the insurance company to make reasonable settlements without the insured’s permission, most medical malpractice policies require the insured medical care provider to consent to a settlement. We have seen instances where a medical care provider, even though negligent, will not settle the case. Many times, the medical care provider is concerned with his or her reputation.

Medical Conspiracy of Silence

A complaint that has long been lodged against the medical community around the country is that one medical care provider often will not criticize another. In fact, some patients are informed by well-intentioned, professional doctors that another doctor acted negligently. However, the helpful doctor often will not speak publicly or in court against the negligent doctor. In smaller communities, it can be hard or impossible to find local expert witnesses to assist the malpractice victim, making it necessary to find expert witnesses from other communities. There can be many reasons for this “conspiracy of silence,” but following are a few possibilities:

  • Doctors may interact in the same social circles, making one uncomfortable with criticizing another.
  • Doctors may feel that camaraderie in the medical community is more important than resolving malpractice issues with which they are not involved.
  • Some doctors simply may feel that patients should not sue doctors.
  • Doctors refer patients to one another and may not want to affect this relationship.
  • Some doctors simply don’t want to be involved in litigation.

Call with Questions

At Nelson MacNeil Rayfield, we know that proving medical malpractice can take incredible resolve and effort. However, we strongly believe that holding every professional accountable for his or her negligence protects all of society, and we’re willing to fight for our beliefs. We have the expertise to properly investigate potential malpractice, and can help find the necessary expert witnesses to help evaluate the case. If you have questions, please call for a free consultation with one of our experienced medical malpractice attorneys. 

Helpful Links

J.T. James article, published in the U.S. National Library of Medicine National Institutes of Pubic Health: “A new, evidence-based estimate of patient harms associated with hospital care: https://www.ncbi.nlm.nih.gov/pubmed/23860193

U.S. National Library of Medicine: https://www.nlm.nih.gov/

Oregon Medical Board Online Licensee Search Services (including malpractice): https://techmedweb.omb.state.or.us/Clients/ORMB/Public/VerificationMalpractice.aspx


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