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Most Common Defenses in Medical Malpractice Cases

Judgment Call a Common Defense

The most common defense in medical malpractice cases is the judgment call defense. When a case has been brought against a doctor, the doctor can turn around and say that he should not be blamed because it was his medical judgment to treat the patient in that manner. The doctor will say that he had number of options available and chose to go along with one of them. The doctor will state he is not to blame just because the patient suffered a complication from the procedure.

Is this a wise move for a doctor to take and can it be attacked?

Why is it an Effective Defense?

Well it is a sterling defense for the doctor, and it is used in many medical malpractice cases. Why is this an effective defense? Who better than the doctor to know what the problems were of the patient? Who better to see what the options were during the course of the surgery? Who better to decide what the right treatment was for the patient than the doctor who has been seeing the patient for a period of time?

The doctor was not acting with malice and his actions were altruistic.

Therefore, the doctor will refuse to take the blame and say in court that it was his judgment call, his trained medical opinion, and he has been doing this for a long time. This will be a concrete defense because juries like to hear that the doctor was exercising his or her best judgment.

Additionally, there is also an instruction in the law that the judge will tell the jury at the end of the case. This law says that if you believe that the doctor was exercising his best medical judgment then you should rule in favor of the doctor. There you go, the judgment call is a judicious defense.

Judgment Call and a Lack of Informed Consent

Patients should also know that simply because they are encountering a problem or complication after a surgery of treatment that does not necessarily mean there was any wrongdoing. Therefore, many patients who suffer from an injury after receiving medically accepted treatment are very upset to know that winning a medical malpractice case is not a given. Patients will mainly focus on the fact that they are now disabled and they might not have a clear idea about what exactly happened.

But to connect that with the injuries is an entirely different facet. Therefore, the patient's lawyer will have to first ascertain what it was that caused this person's problems. Every single treatment of a surgical procedure has a risk or risks associated with it. The lawyer will therefore have to find out if the doctor had discussed the various treatment options and the risks and benefits associated with each.

In most cases, the doctor would have discussed the risks with the patient and even their colleagues, but the real question is whether the doctor revealed everything that was required to the patient so the patient can make a suitable decision.

If the doctor has not provided the required information to the patient then it is lack of informed consent. This can be an effective counter to the judgment call defense, if the patient's lawyer is able to show in court that the doctor did provide the patient with sufficient information about the treatment or procedure. Now you, the plaintiff, have some meat on your case.

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