Contrary to the public opinion campaign being waged by the medical profession, medical malpractice cases are real. Although well intentioned, it is a fact that medical professionals commit errors from time to time and patients are harmed. This harm is best known by the unfortunate victims or their families. It is known that the vast majority of medical malpractice is committed by a small fraction of care providers. Rather than policing their own, however, the medical profession and its insurers have decided instead to blame the victims and their attorneys.
At Bland Richter, LLP, we understand the following things about medical malpractice, particularly in South Carolina:
- Under South Carolina law, a “bad result” is not malpractice
- Under South Carolina law, doctors are not considered the insurers of the safety of their patients
- Under South Carolina law, doctors are not considered the guarantors of successful results
- Under South Carolina law, one cannot infer medical malpractice from a bad outcome
- And in South Carolina, and elsewhere, the political climate in which these cases are tried is hostile.
In order to prove malpractice, one must prove the following essential elements. First, one must show the “standard of care” for the particular procedure or treatment modality at issue. In other words, what would other reasonable and competent doctors have done under the same or similar conditions? This is known as the “standard of care” and it must usually be proven by testimony from other expert doctors who practice in the same field of medicine as the defendant practitioner.
Once the standard of care is proven, a claimant must show how the defendant doctor deviated from the standard of care. That is, exactly what is it that the defendant doctor did that he or she should not have done OR what is it that they should have done that was not done? Provided that both the standard of care and the deviation from the standard can be shown, a successful litigant must also prove that it was the deviation from the standard of care which was the “proximate cause” of injury. In other words, it must be shown that “but for” the physician’s failure to follow the standard of care, the patient would not have been injured.
At Bland Richter, LLP, we commence, litigate and try serious medical malpractice cases. Our approach is to analyze the cases closely in advance of trial in order to determine which cases are good candidates for successful prosecution. We do not file weak cases in hopes of nominal settlements. In general, medical malpractice cases are costly to bring and are defended vigorously. A litigant should reasonably anticipate that trial would be necessary. The essential ingredients to a successful medical malpractice case are a clear and understandable deviation from the standard of care, together, with a clear and appreciable injury to the patient. Although most good medical malpractice attorneys are selective in the cases they accept for representation, the medical processional still wins more often than it loses. It is for this reason that the cases need to be analyzed closely and properly before one undertakes the arduous task of trying a medical malpractice case.