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After your attorney files a Complaint against a negligent healthcare provider, your case will soon enter a phase of litigation called “Discovery.”  Discovery has two separate phases: “fact discovery” and “expert discovery.”  Fact discovery is a period of time during which the parties are entitled to an exchange of information about the case.  During this period, attorneys, utilizing procedural mechanisms provided by the Utah Rules of Civil Procedure, compel the opposing party to disclose information and give sworn testimony.  Because most medical malpractice cases are “tier 3” cases, standard fact discovery will usually last a minimum of 210 days.  Often this period is extended because the parties need more time.

The methods of discovery include, but are not limited to, interrogatories, requests to produce documentation, medical examinations, requests to admit, and depositions.  Good attorneys are skilled in strategically using these methods of discovery in a manner that helps you obtain the most important and most relevant information.

It is extremely important that you work with your attorney to ensure that all of the information requested is gathered and disclosed.  Failure to turn over evidence will prevent its use at trial.  In extreme cases it can result in dismissal of your case.  Cooperation will also help your attorney to help build the strongest case possible.

The defendant’s attorney will almost always seek to depose you.  We cannot avoid this.  During a deposition, you will be placed under oath, and the defense attorney will be able to compel you to answer questions.  Your attorney will help you prepare for the deposition and will sit by your side during the deposition to make certain that none of the questions are not permitted by law, and to otherwise help you through the process.  Depositions often cause the most anxiety for injured persons.  Having a good attorney, and adequately preparing, can help tremendously.

After fact discovery, expert discovery begins.  You will likely not be as involved during this portion of litigation.  In complex medical malpractice cases, your attorney will have retained expert witnesses to help substantiate your claims.  The defendant’s attorney will have done the same.  Expert discovery is the period of time during which the parties exchange information about what the experts will say.  This exchange usually occurs by deposing the experts.  Expert discovery in complex cases can last several months.

Once both stages of discovery are complete, the Court will set a trial date.  At G. Eric Nielson & Associates, we are well versed in both fact discovery and expert discovery. We have a panel of the nation’s top experts that assist us with our cases.  We will be there to assist you in every step of your case. Call us today for a free consultation if you feel that you have been a victim of medical negligence or malpractice.

Medical Malpractice is a supremely complex area of the law that requires a patient, or his attorney, to carefully build a case to prove four distinct elements of the claim: 1) duty, 2) breach, 3) causation, and 4) damages.

Duty

Duty, in the context of a medical malpractice case, is the medical provider’s obligation to provide a certain standard of care to the patient.  Medical providers do not owe any duty to people that are not their patients.  In most medical malpractice cases, there is no dispute that the patient and medical provider had formed a patient-provider relationship, imposing a duty on the medical provider to properly treat the patient.

Occasionally, however, a medical provider may argue that she had no duty to care for the patient because there was not a patient-provider relationship.  This may occur in cases where there are multiple doctors involved in a patient’s care.  A primary doctor may seek another doctor’s advice on how to treat the patient.  If the consulting doctor gives bad advice, the consulting doctor may argue that he had no duty to meet the standard of care because he was not the patient’s doctor.

Once a patient has established that there was a patient-provider relationship, the patient must prove what the medical standard of care was.  In Utah, the standard of care is to use that degree of learning, care, and skill used in the same situation by reasonably prudent medical providers in good standing practicing in the same specialty or field.

Establishing this standard of care requires a patient to present testimony by another doctor, qualified in the same specialty as the defendant, stating what the standard of care required.  This is often a hotly contested issue in medical malpractice cases.

Importantly, the standard of care does not require medical providers to be perfect.  It only requires them to exercise the same degree of care that is required in the same or similar situation.  Occasionally, a bad outcome occurs that a perfect medical provider may have been able to prevent, but the patient’s provider did not prevent.  If the patient’s provider met the standard of care, such outcomes, in the eyes of the law, are risks assumed by the patient.

Breach

After establishing the standard of care owed to the patient, the patient must show that the medical provider breached that standard of care.  Typically medical records provide a good starting point to establish what the medical provider did and did not do.  Medical records, however, do not ever contain the full picture.  Indeed, they generally contain a biased report that favors the medical provider, and they often contain errors about a patient’s medical history, symptoms, and other relevant facts.  Working closely with your attorney to create a timeline of detailed events is very helpful in proving what actually happened, not what the medical record says happened.

Expert witnesses are also helpful in proving what a medical provider did or did not do.  They are well trained in finding inconsistencies in the medical records and the medical provider’s story.

Causation

Next, a patient must establish that the medical provider’s breach of the standard of care proximately caused the patient’s injury.  Causation is often a matter of significant dispute in a medical malpractice case.  A defendant may admit that they breached the standard of care, but still avoid liability if the patient cannot prove that the breach caused any injury.

For example, if an emergency room doctor fails to diagnose a serious medical condition on Monday, and the patient dies on Tuesday, the emergency room doctor may argue that a proper diagnosis would not have made any difference because the condition was so bad that the patient would have died on Tuesday anyway.  In other words, his breach did not cause the patient any additional injury.

In Utah, a patient must establish causation through the testimony of an expert witness.

Damages

Lastly, the patient must establish the extent of the damage caused, and how much money sufficiently compensates for that damage.

There are two general types of damages: economic damages, and non-economic damages.  Economic damages include any monetary cost that the patient has incurred or will incur as a result of the breach.  This includes past medical bills, future medical bills, past lost wages, future lost wages, and any other necessary costs resulting from the injury.  Non-economic damages includes compensation for the pain and suffering caused by the breach.  In Utah, non-economic damages are capped at an amount adjusted each year based on inflation.  In 2014, the cap is approximately $450,000.

Conclusion

Proving medical malpractice can be a complex and difficult prospect, even in cases that appear on their face to be simple.  Defense attorneys are well trained and work hard to limit liability.  It is essential to have a well trained medical malpractice attorney leading your team.  This will help you to prove the four required elements of your claim and recover for you injury.  Please contact the medical malpractice attorneys at G. Eric Nielson & Associates for a free consultation.