Medical Malpractice IssuesA recent study regarding medical malpractice claims was reported in The American Journal of Surgery, Vol. 203, No. 6, June 2012.

While this was a limited study and involved only a handful of resolved New York State medical malpractice lawsuits, some of the findings may be instructive to all attorneys prosecuting or defending medical malpractice claims throughout the country.


  1. Communication with the patient was consistently identified as an important issue during litigation. When communications errors were alleged, not only did it increase the likelihood that the plaintiff would prevail, it also increased the likely amount of the award.
  2. Adopting and adhering to standardized procedures such as a checklist in the operating room could be a factor in reducing the risk of malpractice.
  3. Naming multiple physicians in a lawsuit tended to decrease the likelihood of the plaintiff’s ultimate victory, which the authors believe may be a “proxy for the confusion of patient ownership.” In other words, identifying who was responsible for the patient’s care gets confusing when more than one physician is involved.
  4. “Technical errors” were more frequently made by experienced surgeons, in the middle of their careers, typically under the age of fifty, performing routine surgical procedures in their own specialty.
  5. Experienced physicians performing routine procedures were more likely to lose lawsuits than inexperienced surgeons doing unusual or emergency procedures.
  6. A “reoperation” greatly increased the likelihood of a plaintiff’s victory.

Here’s the “take-home” for medical malpractice litigators:

  1. Make certain that your expert is very familiar with best practices regarding care-giver communications.
  2. Take time to determine if the defendant complied with a standardized and appropriate procedure that may include checklists to avoid unnecessary errors.
  3. Think carefully whether you need to “sue everyone,” as that may just confuse the issue.
  4. Don’t assume that an experienced physician at the presumed height of his career is more likely to outperform a younger or an older physician.
  5. Sometimes, routine procedures lead to routine mistakes.
  6. Be aware if there was a re-operation, as that improves the likelihood of a plaintiff’s success.

By: Ian Heller, J.D.