Interviews Medical Malpractice Expert Witness on the State of Medical Malpractice Lawsuits, and Why Doctors Win 80% of Cases at Trial

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The perception remains that medical malpractice lawsuits occur at the drop of a hat but that’s not so, according to expert witness Dr. David Priver, in an interview with The issues are complex, with few cases going to trial and the prescription for a meritorious medical negligence lawsuit may surprise you.

David Priver M.D., FACOG is a practicing obstetrician and gynecologist with 33 years in the field and counting. With that kind of experience and insight, Dr. Priver is often called upon to serve as an expert witness in cases alleging medical negligence or hospital malpractice. And what the board-certified physician has to say about the anatomy of a sound malpractice case – and what isn’t – serves as a window to the inner workings of medical malpractice lawsuits, as writer and journalist Brenda Craig recently discovered.

“It is not easy at all, to launch medical negligence cases, let alone see them go to trial and sustain a win for the plaintiff”, says Dr. Priver in the interview. “When doctors go to court as defendants, they win 80 percent* of the time. People tend to trust doctors and I don’t see why they shouldn’t – but it is hard to win cases in a trial. They are easier to settle out of court, but to win in a trial is not so easy.”

Here’s why. A medical negligence case comes down to whether, or not a certain standard of care was met – and whether, or not such standard of care had any bearing on the proximate cause of whatever bad outcome may have fostered the medical malpractice lawsuit.

According to the U.S. National Library of Medicine at the National Institutes of Health, a medical malpractice lawsuit must generally meet four legal requirements for there to be a successful claim**: (1) the existence of a legal duty on the part of the doctor to provide care or treatment to the patient; (2) a breach of this duty by a failure of the treating doctor to adhere to the standards of the profession; (3) a causal relationship between such breach of duty and injury to the patient; and (4) the existence of damages that flow from the injury such that the legal system can provide redress.

Dr. Priver’s services as an expert witness are sought about once per month, although he is quick to point out that of the 150 cases he has reviewed, he has actually testified in only seven or eight trials during his career.

Thus, the vast majority of his work is related to a forensic review of the file, and usually on behalf of the plaintiff. First to be determined is if there has been a bad outcome. If so, Dr. Priver then conducts a detailed analysis of what transpired in an effort to establish whether, or not, a standard of care was met. Did the doctor(s) involved act properly and meet a standard of care? And also, what bearing did a potential deviation in standard of care have on the outcome?

Sometimes, a bad outcome occurs even though a standard of care is met. It all comes down to what Dr. Priver references as “proximate cause”.

“You can have a bad outcome and a clear deviation in standard of care but the deviation in the standard is not what caused the bad outcome,” explains Dr. Priver, from his office at LaMaestra Medical Center in San Diego. “In that case I have to say that the case does not have merit because it doesn’t meet that final criteria or what we call proximate cause.

“Suppose a doctor wrote a prescription with the incorrect dosage and the patient suffered an injury or adverse result but it had nothing to do with dosage of the drug. You have injury, you have violation of standard of care but you do not have proximate cause. The violation is not what caused the injury.”

What is particularly revealing is the reality that standard of care is in large measure subjective and can be open to interpretation, with disagreement amongst doctors as to what may constitute the best procedure, or best practice in different situations.

“That’s why we have trials,” says Dr. Priver. “We can have differences of opinion. What I say is standard of care may not be what someone else may consider to be the standard of care, and therein lies the adversarial nature of these proceedings.”

The take-home message remains thus: medical negligence cases are complex and subject to interpretation. Few cases go to trial, and those that do are won by doctors eighty percent of the time. That’s not to suggest that medical malpractice or a doctor mistake doesn’t happen. Proving it, however, requires educated and expert research. To that end, Dr. Priver maintains a website as a means to further educate consumers, attorneys and prospective plaintiffs as to the various issues and nuances related to a potential medical malpractice claim. ***

*Reuters, “Docs win most malpractice suits, but road is long”, 5/23/12,

** U.S. National Library of Medicine, National Institutes of Health, “An Introduction to Medical Malpractice in the United States”, accessed 2/19/14,

*** provides comprehensive legal news and critical information for those affected by once-in-a-lifetime situations involving medical device lawsuits, personal injury, defective products, California Overtime and labor issues or a host of others. Readers seeking legal help can request it by completing a form which is distributed to attorneys specializing in these cases. Trial attorneys utilize the site to keep abreast of hot legal issues and settlements as well as connect with potential clients. Web:

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