Medical Malpractice Defense: The Predictive and Protective Power of Mortality, Survival, and Life Expectancy

Introduction.-The defense of medical malpractice presents a significant challenge to Assistant United States Attorneys (AUSAs). A medical malpractice claim consists of proof of: (1) duty, (2) breach of the duty, (3) causation, and (4) damages. Often the breach of the duty and the causation elements present complex medical issues involving multiple specialties and subspecialties of medicine. A considerable amount of time is required to prepare the defense pertaining to the alleged breach of the duty and causation elements. The damages aspect of the medical malpractice case is often not given equal treatment and may not be fully developed. As a result, damage awards can be surprisingly high once the breach of the standard of care and the causation defenses fail. Purpose.-The purpose of this article is to underscore the importance of developing the damages aspect of the case. This article will demonstrate through a case study the power of using fact-based medical-actuarial risk statistics and life expectancy testimony to limit, by thousands if not millions of dollars, economic damages to impairment-specific "years of life lost" in medical-malpractice torts. The important points to remember are that from the moment a case is assigned to an AUSA, the AUSA must: (1) focus as much, if not more, attention on damages; (2) execute a discovery strategy that ensures all aspects of damages are thoroughly investigated; and (3) retain the appropriate experts, including, in appropriate cases, an expert on medical risk appraisal and life expectancy.