Getting Your Day in Court

Stall tactics may be used in an attempt to bully a plaintiff into accepting an unfair settlement offer. How do you receive compensation that is relative to the extent of your injuries?

There is a very strict criteria necessary in order to file a claim for medical malpractice. If one or more of these is missing, the defendant has the right to ask that the case be dismissed. Even if a judge agrees and dismisses your claim, you have the right to appeal his decision with a higher court. This is a lengthy process and often times just a tactic on the defense side to stall the inevitable and attempt to persuade you to accept an unfair settlement offer. Your Missouri medical malpractice attorney should be well aware of how the appeals process works and how to use it to get you your deserved compensation.

Establishing a Relationship Between the Plaintiff and the Defendant

There are four key elements in any medical malpractice case that must exist before the case will even be heard. The first is an established relationship between the plaintiff and the medical personnel that is named in the lawsuit. This is usually easy for a plaintiff to establish unless the negligence is traced back to a consulting physician who was not directly involved in the treatment. While this may seem like common sense to most, it has been established by the courts to protect physicians from being sued for off-hand medical advice they may have given to a neighbor.

Absolute Proof of Negligence

The second and third requirements are tied closely together. You have to have absolute proof that the defendant was negligent, and you must be able to show how that negligence resulted in your injury. In order for the plaintiff to establish this, expert testimony is required to show how the doctor deviated from the accepted standard of care and why this caused you harm. The law recognizes that doctors are human and can make an error which is why it is not required that they give the best possible care, only that their treatment be reasonably skillful and careful. The testimony of another medical professional would have to reflect how if faced with similar circumstances they would have proceeded differently.

The Missouri Court of Appeals just overturned a ruling that had been made prior regarding the credibility of a plaintiff’s expert witness. In the original ruling the judge felt that the doctor’s admission of not being an expert in orthopedic medicine ruled him out as a credible expert witness. During the appeal the plaintiff was able to show how despite the fact that he was not an expert in orthopedic medicine, any doctor when faced with similar symptoms should have known to refer the patient to a vascular physician. The judge accepted this argument and has ruled that the case may continue.

Damages from the Negligence

The last criteria necessary is the same required in any type of personal injury litigation. The plaintiff must have accrued some form of damages as a result of the negligence. In the above mentioned case, the plaintiff lost her leg as a result of the physician not recognizing her condition as vascular and advising her to seek the opinion of a qualified expert. Had he referred her properly she would not have needed an amputation surgery. For this instance, damages are evident.

Physicians and hospitals carry extensive insurance to protect themselves from medical malpractice claims. It is these insurance carriers who will deploy stall tactics in an attempt to bully a plaintiff into accepting a settlement offer that is not representative of the damages they incurred. If you are injured as a result of medical negligence it is important that you have an expert Missouri medical malpractice attorney by your side to help make sure you get your day in court and receive a compensation that is relative to the extent of your injuries.

Call Zevan and Davidson Law Firm at (314) 588-7200.

Photo credit:  Teemu008