OBGYN Malpractice
Attorneys

What are the most common bases of medical malpractice lawsuits against OBGYN specialists?

According to the 2015 Medscape Malpractice Report, OBGYN specialists are most likely to be sued for:

• An abnormal injury
• Failure to properly diagnose a condition
• Failure to treat a condition
• Poor documentation
• Lack of proper informed consent
• Failure to follow safety procedures
• Medication errors

These are only a few of many possible bases for a medical malpractice lawsuit against an OBGYN specialist.

What do I have to prove to win an OBGYN lawsuit?

To win an OBGYN medical malpractice lawsuit, you will have to prove that:

• Your healthcare provider failed to meet the applicable standard of care. Doctors are held to a high standard of care due to their extensive training as well as the trust that the public places in them. An OBGYN specialist will be held to a higher standard of care than a general practitioner or a midwife.
• This failure to meet the standard of care actually caused you harm. A misdiagnosis, for example, might not have caused you harm if a proper diagnosis was issued a month later and your condition hadn’t worsened or caused you any pain in the meantime.
• This failure caused you a specific amount of damages. In other words, you will have to prove every dime of your damages with admissible evidence. Although this is a fairly straightforward matter in the case of tangible losses such as medical bills or lost work time, you needn’t worry about calculating the exact value of non-economic damages such as pain and suffering – they are generally calculated as a multiple of your economic damages.

Do most medical malpractice cases go to trial?

No, over 90 percent of medical malpractice claims are ultimately settled out of court, and OBGYN claims are no exception. Nevertheless, medical malpractice claims are more likely to go to trial than most types of lawsuits, because healthcare defendants see a malpractice lawsuit as an attack on their reputation and thus tend to fight tooth and nail against any admission of liability. Despite this reality, it is often a good idea to file a lawsuit at some point, in order to pressure the defendant into offering a generous settlement.

The threat of an adverse verdict is likely to provide you with the bargaining power that you would lack if you relied solely on out-of-court legal arguments delivered at the settlement table. In any case, a settlement can be reached at any time during a pending lawsuit.

What is the standard of proof in an OBGYN medical malpractice case?

The applicable standard is “preponderance of the evidence” not “beyond a reasonable doubt,” as in a criminal case. Proving a claim by a preponderance of evidence is like placing your evidence on one side of a scale and placing the defendant’s evidence on the other side of the scale, and ruling in favor of whichever side is heavier, even if one side is only slightly heavier.

In other words, you need to prove about a 51 percent likelihood that you are right in order to win the case in court. In settlement negotiations, it is possible that the defendant might be willing to settle with an even less than 50 percent likelihood just to stay out of court, although most defendants are more stubborn than that. This lower standard of proof makes it much easier to win a medical malpractice lawsuit than to win a criminal conviction.

What is comparative fault and how might it affect my case?

If the defendant credibly alleges that your damages were partly your own fault, Illinois comparative fault principles will kick in. You might share the blame for your own damages if you failed to fully disclose your past medical history, for example, or if you failed to follow the doctor’s instructions in a manner that contributed to the harm you are complaining of. If the court agrees that both parties share fault for your damages and that it is not practical to separate your damages into two distinct maladies, the court will assign each of you a percentage of fault.

If the court assigns you fault of 50 percent or higher, you will not be entitled to any damages at all. If, on the other hand, the court assigns you fault of 49 percent or less, it will deduct this exact percentage from your damages. If your damages were $100,000 and your percentage of fault was 15 percent, for example, you will lose $20,000 and the court will award you only $85,000.