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usually have a strict and short limitations and repose period, which
kills suits that aren't filed in a timely matter.
• Jury instruction. If a patient manages to secure expert testimony and
file a malpractice case in a timely manner, when the case finally goes
to trial, the jury is given instructions that are typically unfavorable to
the plaintiff. Basically, they are told that even if they think that the
medical treatment was suboptimal, the medical provider should still
win as long as it complied with the standard policies and procedures
of the medical profession. Negligence instructions are much more
broad.
• Capped damages. Most states cap the amount of non-economic dam-
ages in medical malpractice cases. As a result, patients win much less
than they would in ordinary negligence cases.
Anyone can see that the case above shows negligence — the unli-
censed front desk assistant engaged with the patient, offered medical
advice and never forwarded her concerns to a doctor. But even
though the negligence is clear, there's still not a 100% guarantee that
the plaintiff would win if he sued under medical malpractice stan-
dards. And even if he did, it would be for much less money. Being able
to sue a practice for ordinary negligence gives a huge advantage to
patients — and could be a big detriment to your facility.
How to protect yourself
While this decision was delivered in Georgia, it has the potential to
expose practices across the country as a trend continues of plaintiffs
suing medical professionals for ordinary negligence instead of the
much-more-difficult medical malpractice.
While you can't reverse this trend, you can protect yourself with a
few simple steps. One important point in the case above was that the
court let the plaintiff sue the clinic and the assistant for statutory vio-
M E D I C A L M A L P R A C T I C E
