Wrongful Death
Death By Expert Witness
01/07/09 09:27
Under
Utah law, a victim of medical malpractice must use an
expert witness to establish the ‘standard of care’
and that the health care provider failed to meet that
standard. The rule makes good sense, and prevents
frivolous lawsuits, but can also operate to prevent
some meritorious claims as well.
Expert Testimony Required.
Expert witnesses, i.e. a physician or other healthcare provider working in the same or similar field as the defendant, testify to establish the rules by which healthcare providers must operate. Just as drivers must follow the rules (e.g., don’t run stop signs, obey the speed limit) there are highly specialized rules in medicine. These rules form the standard of care. If a defendant healthcare provider broke a rule, then they ‘breached’ the standard of care. If that breach caused harm to the patient, then there is a case for medical malpractice. A very basic example would be that, when a patient presents with what appears to be a broken arm, physicians must get an x-ray.
Why Experts Are Required.
Typically, jurors, attorneys and judges do not have the medical expertise to determine what the standard of care is, whether it was breached and whether or not the breach caused harm. By requiring expert testimony to establish the rules for healthcare providers, frivolous lawsuits are prevented.
Why It Can Become a Problem.
Experts do not testify for free. Worse still, no healthcare provider in the State of Utah will offer testimony against another healthcare provider, a ‘white wall’ of silence and an unwritten code to hide the ugly truth of medical malpractice... Mistakes happen, people are catastrophically injured and killed, but the malpractice insurance (largely owned by the healthcare providers in Utah) wants to walk away for free.
So, the only option is to retain experts from out of state, who do not operate under the same fund of malpractice insurance and who do not need to worry about offending their local peers. Of course, this makes it even more expensive for an individual who is already injured and possibly out of work because of the injury.
Perhaps most troubling, because expert witnesses cost so much, only the most catastrophic cases can be brought. For example, if Joe is hurt by medical malpractice, but only suffers $15,000 in medical expenses and lost wages, it will be a very difficult economic decision to bring the malpractice claim because expert witness fees will eat up most of what he could recover. The cliche` goes: No sense throwing good money after bad.
Expert Testimony Required.
Expert witnesses, i.e. a physician or other healthcare provider working in the same or similar field as the defendant, testify to establish the rules by which healthcare providers must operate. Just as drivers must follow the rules (e.g., don’t run stop signs, obey the speed limit) there are highly specialized rules in medicine. These rules form the standard of care. If a defendant healthcare provider broke a rule, then they ‘breached’ the standard of care. If that breach caused harm to the patient, then there is a case for medical malpractice. A very basic example would be that, when a patient presents with what appears to be a broken arm, physicians must get an x-ray.
Why Experts Are Required.
Typically, jurors, attorneys and judges do not have the medical expertise to determine what the standard of care is, whether it was breached and whether or not the breach caused harm. By requiring expert testimony to establish the rules for healthcare providers, frivolous lawsuits are prevented.
Why It Can Become a Problem.
Experts do not testify for free. Worse still, no healthcare provider in the State of Utah will offer testimony against another healthcare provider, a ‘white wall’ of silence and an unwritten code to hide the ugly truth of medical malpractice... Mistakes happen, people are catastrophically injured and killed, but the malpractice insurance (largely owned by the healthcare providers in Utah) wants to walk away for free.
So, the only option is to retain experts from out of state, who do not operate under the same fund of malpractice insurance and who do not need to worry about offending their local peers. Of course, this makes it even more expensive for an individual who is already injured and possibly out of work because of the injury.
Perhaps most troubling, because expert witnesses cost so much, only the most catastrophic cases can be brought. For example, if Joe is hurt by medical malpractice, but only suffers $15,000 in medical expenses and lost wages, it will be a very difficult economic decision to bring the malpractice claim because expert witness fees will eat up most of what he could recover. The cliche` goes: No sense throwing good money after bad.
Arbitration, Wrongful Death & Damage Caps
09/20/08 15:12
I
spoke at the Utah Association for Justice’s Annual
Seminar yesterday regarding the case of Bybee v.
Abdulla. In Bybee, the Utah Supreme Court sided with
the plaintiff, refusing to compel her to participate
in an arbitration. The Plaintiff’s husband died as a
result of alleged medical malpractice. The physician
held an arbitration agreement with the patient’s
signature, but the signature of the spouse and heirs.
Under the Utah Constitution, claims for wrongful
death receive special protection, making it
effectively impossible for the patient to bind his or
her heirs to participate in arbitration. But, the,
the Bybee court went even further, holding
that
any limitations
on wrongful death claims would likely violate the
special constitutional protections. This means that,
in the medical malpractice context, there is likely
no longer a damages cap for the loss of love, society
and companionship when the negligence of healthcare
providers kills the spouse, father, mother or
child.
