The Top 5 Defences to Medical Malpractice Claims

Medical malpractice claims often involve complicated questions about medical science, medical technology, and standards of care and risk assessment.

There are a number of different defences that can be raised in a medical malpractice claim. But, the five most common defences filed by doctors in malpractice claims are:

  1. Forseeability:

    A doctor is responsible for protecting patients from risks that they can see or know about beforehand. In other words, they are responsible for protecting against foreseeable risks or dangers. The doctor may claim that the injury was an unforeseeable consequence of the medical treatment. For example one client we helped suffered serious injuries as a result of side effects from medication given to him by his doctor. The doctor argued that the side effects were so rare that they were not foreseeable.

  2. Patient Caused or Contributed to the Injury:

    The doctor may claim that the injury was caused by the patient not following proper medical advice. For example, in one case we reviewed the patient didn’t attend his appoint for a chest x-ray and eventually died from undiagnosed lung cancer.

  3. Not a Recognized Risk:

    If a doctor explains all the risks to the patient, and the patient agrees to assume those risks, the doctor is not responsible if those risks result in an injury. The doctor will claim that the patient’s particular injury was a recognized risk of the procedure and the risk was properly explained to the patient. In other words, the patient gave informed consent to undergo the risks of the procedure.

  4. Someone Else Did It:

    The doctor may claim that some other party was responsible for causing the injury. In one case we successfully settled, the doctor argued that the hospital’s faulty medical equipment, not the doctor’s negligent care, was responsible for my client’s serious brain injury.

  5. Pre-Existing Injury:

    The doctor may claim that the injury was caused by a previous illness or disease. For example, the doctor may claim that your disabling back pain was not the result of negligent surgery but due to pre-existing arthritis.