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“Do I have a malpractice case?”

Peter Riley
December 2004

We frequently receive inquires from individuals concerned about the quality of the medical care they’ve received. At the outset, it is important to realize that medical malpractice cases invariably are complex and challenging. This article will discuss the elements of a medical malpractice claim and the issues that frequently arise. It will begin with a discussion of the issues surrounding medical malpractice liability, then go on to discuss issues that frequently arrives regarding damages in medical negligence cases.

LIABILITY:  It is important to realize that the outset that the fact that a surgical procedure or other medical treatment did not have the intended or expected result does not automatically mean that the medical care or treatment was negligent. Rather, only if the doctor, hospital, or other medical facility such as a nursing home violates what is called a STANDARD OF CARE is the physician or medical provider responsible for any harm that results. A violation of the Standard of Care may result because the physician or medical provider failed to do something that the Standard of Care required, or that they committed an act in violation of the Standard of Care. A couple of examples will illustrate these principles.

Assume that Mrs. Smith is pregnant with her third child. The doctors fail to do an adequate assessment and don’t realize that the baby is too large to fit through Mrs. Smith’s birth canal. When she fails to progress during labor, they administered a drug to accelerate the progress of labor, and don’t pay attention to the electronic monitor that shows the baby’s heart rate. Because of the pressure on the baby, he or she is deprived of oxygen, and suffers brain damage. 

In such a case, the attorney begins by examining all the medical evidence. In this case, assuming that the Standard for Care of the mother and baby during delivery requires that the doctor make an assessment to be sure that the baby will fit through the birth canal, and further that the doctor monitor and pay attention to the instrument that shows the baby’s heart rate, the hospital staff and doctor could be held liable for failing to meet the Standard of Care.

Another case would be one in which a patient undergoes surgery for gall bladder problem. In the course of the surgery, the doctor cuts into the liver, damaging one of the vessels in the liver. The doctor fails to realize the problem initially, and a great deal of infection spreads into the patient’s abdomen. When the doctor finally realizes the problem, rather than getting an appropriate assessment and doing a study to determine where the fluid is leaking, he simply goes in and re-operates, further complicating the problem. 

In this case, the violation of Standard of Care would not necessarily be lacerating the vessels in the liver, but rather in failing to do proper assessment to determine the best course of action for correcting that problem.

The determination of whether or not the medical treatment met the required Standard of Care is one that requires expert assessment. An investigation of liability in a medical malpractice case always begins with obtaining all available medical records, x-rays, MRI films, and other relevant materials. It may also be necessary to interview witnesses who were present when the problem arose. 

Thereafter, all of these materials need to be reviewed by an expert in the field to determine if there was negligence in the care and treatment of the patient.

In Minnesota, no medical malpractice lawsuit may be commenced, unless and until the case has been reviewed by an expert whose credential are likely to be admissible in Court and that expert has determined both that there was negligence and that the person was harmed as a result. There are limited exceptions to this rule, most particularly when there isn’t sufficient time to serve an expert review before the running of a statute of limitation or when there is additional information necessary, which can’t be obtained without commencement of lawsuit.

Once the lawsuit is started the person making the claim is under very strict guidelines to fully disclose their expert’s opinion within six months of the time of the filing of the lawsuit. This means that when the medical malpractice suit is commenced, the attorney has to be prepared to move rapidly forward to secure all of the available information so that he or she can make the statutory deadline. 

DAMAGES:  Even if it can be established that medical malpractice occurred, it is still necessary to prove the harm that occurred to the patient. This is called proving damages. In medical malpractice cases, damages include compensation for past and future medical expenses that have been incurred and will be incurred as a result of the negligence of the doctor or hospital, damages for pain and suffering in the past and in the future, and compensation for loss of wages and impairment of future earning capacity. 

An issue that frequently arises with respect to medical malpractice damages is proving that the medical bills, loss of wages and pain and suffering are related to the malpractice and not other physical conditions. For example, a person that already has a disease who to receives negligent healthcare may nonetheless face a claim by the insurer for the doctor or hospital that their current medical care and disabilities are related not to the malpractice, but to their ongoing diseases or other problems.

CHALLENGES IN MEDICAL MALPRACTICE CASES: Medical malpractice cases are invariably hard fought. Many doctors don’t want to get involved in criticizing their fellow doctors, and thus finding experts can be difficult, particularly in narrow fields of specialty such as neurosurgery. Even if an expert is willing to review the case, their charges typically run into the thousands of dollars simply for reviewing the matter, and thousands of dollars more for preparing expert reports and for providing testimony. Of course, the doctor or hospital can always enlist the help of their malpractice insurer to solicit doctors to defend the negligent doctor or hospital’s conduct. 

In addition to disputing liability, the medical malpractice carriers for the doctors and hospitals always try to find other explanations for the Plaintiff’s difficulties, including concurrent diseases or injury problems that are unrelated to the malpractice. 

Medical malpractice cases also take a great deal of time to prepare. Even after a doctor reviews the medical records at the request of the injured person’s attorney, a process that in itself can take months, the preparation of damages evidence and, the investigation that takes place including depositions of witnesses can take a great deal of time.

Because of the involvement of experts and the time involved, medical malpractice cases are always quite expensive to pursue, both in terms of the time in which the lawyer and his/her staff must involve in the case, but also in out of pocket expenses. It is not unusual in medical malpractice cases to expend more than $50,000.00 in out of pocket expenses for experts, depositions, filing fees and the like in bringing such a matter to trial. Accordingly, it important to be certain at the outset of the case that the damages as a result of the malpractice are significant and warrant the expenditure of the time and costs involved. 

FEES:  We handle medical malpractice cases on a contingent fee. This means that you don’t pay the law firm anything for fees or expenses unless we recover money for you.

STATUTE OF LIMITATIONS:  In Minnesota, the general Statute of Limitations for medical malpractice cases is four years. In cases where the malpractice involves a specific event such a surgery, the case must be begun within four years of the date of surgery. In other cases, a lengthier time may apply if there is negligence in the treatment and the treatment continues. In addition, some cases shorter statutes can apply, such as in cases in which the patient dies. 

It is important to contact an attorney as soon as possible after a as investigation and record review is very time consuming and it is virtually impossible for the lawyer to make a “snap decision” whether to undertake a medical malpractice case or not. 


The best thing to do, if you or a family believes they’ve been a victim of medical malpractice is to contact the law firm of Schwebel, Goetz & Sieben and talk to one of our attorney who is experienced in assessing and handling medical malpractice cases. We provide free consultants to assist in determining whether a case merits investigation and evaluation. As always, there is no charge for this initial consultation 

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