Civil Nature of Medical Malpractice & Burden of Proof

Interviewer: How about the nature of the case? They are civil not criminal, right?

Charles Price: These are all civil cases. The significant difference between a civil and criminal case is in what is called the burden of proof, which in a criminal case the prosecution must prove, as everyone’s heard, by the standard of “beyond a reasonable doubt.” That means you really have to have eliminated any reasonable doubt that the person was guilty of the crime charges.

For a civil case, the burden of proof is what is called the preponderance of the evidence, which is just a fancy way of saying the greater evidence or the weightier evidence. To use a percentage analogy, when I try these cases in front of juries, I have to get their commitment that if we prove that what we say happened more likely than not – that is, even if it’s close call but if it’s 51% likely that what we say was negligent – we don’t have to prove that beyond a reasonable doubt.

That’s a very significant difference. Some people think that is a very easy standard to meet. It’s not, because the doctors always have their own expert and if it’s a toss-up, if it’s 50-50, you don’t win. That’s the difference between a criminal and a civil case; the burden of proof is more significant.

Client Morale & Intent

Interviewer: That makes sense. Do you find that people are like, “Rah, rah! Let’s sue the doctor,” or are they hesitant to bring these kinds of cases forward?

Charles Price: I think most people are very hesitant to bring these cases forward. I think that they realize that, first of all, if it’s a doctor that they’ve had a relationship with for many years, that relationship will likely be over after the case is initiated. People are afraid of the expense that is associated with a case even though these cases are generally handled on what’s called a contingency basis, so there isn’t actually any expense to the client.

People are very reserved. They know that it is a long, hard process or they at least know that once I’ve cleared up their misconceptions about these cases. They are just afraid that there is never going to be light at the end of the tunnel. People are generally reserved about bringing these cases. I find very few people who are just massively gung ho to sue a doctor or a hospital.

Interviewer: In the minds of the people that ask you to bring these cases, is it about getting compensation or is it about punishing the doctor because of what the healthcare professionals did to them?

Charles Price: I would say that almost all of the cases are truly about compensation. I would say very few of the cases are about punishing the physician. However, a different angle on that is that they are not interested in “punishing the physician,” but what I hear frequently, Richard, is that the client doesn’t want what happened to them to happen to somebody else. That’s a very good motive for a person. Those are the kind of clients that I like to have in that they’re less interested in money and more interested in making sure that, again, what happened to them doesn’t happen to someone else. I see that frequently in child injury cases where a parent’s child is mistreated in some way and the family basically wants to make sure that doctor doesn’t do it again to somebody else’s kid, which is a good motivation.

Interviewer: What is the mindset of people that call? Are they just distraught? Or are they resolved by that point and they are logical about it? How have you noticed that they feel about bringing these cases?

Charles Price: Usually, Richard, by the time they contact me they are not distraught. Although, I have had people contact me about, for example, death cases before their loved one is even buried. You do get some situations where the people are distraught. I, of course, get calls from family members of patients actually in the hospital while they are being treated. Most of the time, the dust has settled and the potential clients are rational and really want to find out what happened and if something was done wrong. They don’t know; they are looking for answers.

By Jack O’Donnell

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