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(well…at least in regard to the bringing of a medical malpractice lawsuit)

There are a number of considerations that must be addressed by a patient and his attorney prior to the bringing of a medical malpractice lawsuit.  Below are just some of the considerations.

Finding an expert: Retaining an expert is not as simple as one might think.  Health care providers, and most especially physicians, are inimical to testifying against one of their own.  It is the rare doctor with the courage to come to court and look a fellow physician in the eye and accuse him or her of practicing bad medicine.  These courageous doctors are breaking a taboo by stepping outside of their select circle to criticize another physician.  As such, they are frequently ostracized by other doctors who view them as turncoats.  What this means for Alaska patients is that they must seek expert assistance from the lower 48 because an Alaskan doctor will simply not testify against another Alaska doctor in a medical malpractice action – at lease not if he or she doesn’t want to commit professional suicide.

Cost of litigation:  Paying for a medical malpractice lawsuit can be a daunting task.  Medical malpractice litigation can be prohibitively expensive for all but cases involving very serious injuries.  The least amount of money that can be expected to be spent is $40,000.  And that is for a very simple case.  Most often the costs of litigation run in excess of $100,000.  Where is the money spent?  The majority is on expert costs, which includes the costs of deposing the doctor’s experts who will be charging hundreds of dollars per hour for their time as well of the costs of the patient’s experts who must close their own practices for two or three days to travel to Alaska to testify.  Who pays for it?  Unless the patient is wealthy, it is the attorney who advances the costs to the patient with the hope of being reimbursed after the case is won or settled.  For this reason, it is only cases of medical malpractice that has caused very serious injury or death that or litigated.

Tenacious and well funded defense:  Doctors have insurance (well, at least responsible doctors do).  They pay a lot for their malpractice insurance and the insurance companies have virtually unlimited funds with which to defend these cases.  Alaska court rules allow for up to three experts on each issue.  It is not uncommon for the insurance companies to retain three experts on each issue.  It is the rare case with only one issue.  Not only is “malpractice” an issue but then there are issues involving causation and damages.  A patient and his or her attorney can expect to face a defense that is prepared to outspend them 2, 3 or even 4 times in an effort to defeat their claim.

The laws favor doctors:  If the above is not enough to discourage injured patients from seeking legal recourse for the wrongs they have suffered, the Alaska Legislature, in its infinite wisdom, has put its shoulder to the wheel in enacting laws to further insulate health care providers from litigation.  The laws most harmful to patients are those that are cloaked as “tort reform.”  These laws have placed caps on non-economic (pain and suffering, disfigurement etc.) damages that can be recovered by plaintiffs.  The caps are even lower for medical malpractice actions than those for any other type of action.  So a patient harmed by a physician’s negligence will be prevented from recovering as much as a similarly injured person who is harmed by anyone in another profession or trade. 

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