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If Your Doctor Says You Caused or Contributed to Your Own Injuries, Does He Have to Prove It?

The answer is yes, he does.

Here's the scenario...

You believe your doctor was careless.
You believe his wrongdoing caused you harm.
You also believe that your injuries are significant.

You searched for and found the best medical malpractice lawyer you could find in New York.
He sent your records to a medical expert to verify that you had a valid case.
Your medical expert confirmed that your doctor violated the basic standards of medical care.

He also determined that your doctors' carelessness was a cause of your injury.
He also concluded that your injuries are significant and permanent.
Your lawyer now went ahead and started a lawsuit against your once-loved doctor.

Your attorney prepares the papers that actually start your case.
Those are known as a summons and a complaint.
The complaint lays out, in general, the claims you're making against your doctor.

Your lawyer must then buy an identifying number in court.
We call that an index number.
That number identifies which case this is and appears on every piece of paper filed in court on your case.

Once your lawyer has purchased this identifying number, he then must deliver the lawsuit papers to the doctor you've sued.
Lawyers use a delivery person to do this.
They're called process servers.

Those papers must be delivered in a very specific way.
Once your lawsuit papers have been delivered to your doctor, he will then forward them on to his medical malpractice insurance company.
The insurance company will then hire an attorney to represent your doctor in your case.

The first thing the defense lawyer wants to know from the doctor is "How were these lawsuit papers delivered to you?"
Was it by mail?
Was it hand delivered?

Was it left with a secretary in your office?
Then, after getting some details from the doctor about your treatment, they will now have to answer the allegations in your lawsuit.
They actually prepare a document called an 'answer'.

That responds to all of the allegations you've raised in your lawsuit papers, the complaint.
Typically, they deny everything.
"We deny we did anything wrong."

"We deny anything we did caused or contributed to this patients' injuries."
"Even if we did something wrong, so did the patient."
"Even if we did something wrong and caused this patient harm, her injuries aren't that bad anyway."

When the doctor, by his attorney, starts putting the blame on you, the injured patient, we call this an affirmative defense.
They're arguing "Hey, don't blame me! I did nothing wrong. It was the patient who caused her own injuries. And by the way, if she really is injured, she's not hurt that bad."

That stings.
That's aggravating.
You know it's total bull.

But there it is, in black and white on that document they call 'an answer'.

You should know that when you bring a lawsuit, claiming that your doctor was careless, you've got to show it.
You have to show that you are slightly more likely right than wrong that what you are claiming is true.
In law, we call this the burden of proof.

We have to show by a preponderance of evidence that what you're saying is true.
That only means that we have to tips the scales ever so slightly in our favor in order for a jury to decide in your favor.
Imagine in a football game where the running back is heading toward the end zone. He doesn't have to be 10 steps into the end zone to score. Instead, he only has to get the tip of the ball across the end zone line. That's sufficient in a medical malpractice lawsuit.

In other words, we don't have to show with 100% certainty that what we're claiming is true.
Only that we are slightly more right than wrong.
That means only slightly more than 50%.

If we show 50.1% that what we're claiming is true, then we have 'proven' our case.

Now, let's get to the question I raised in the title of this article.

If the defense turns the tables and blames you for your own injuries, they must now prove it.
"Prove that the patient caused or contributed to her own injuries!"
They must present specific allegations of how you caused your own injuries.

They must present medical evidence and testimony from medical experts to support THEIR allegation that your injuries are because of something you did or didn't do. If at trial, the defense fails to put on testimony and present evidence that you caused your own injuries, we will ask the judge to dismiss their claim that you caused your own injuries.

By the way, the defense has the same requirement to prove their claim that you caused your injuries.
They don't have to show with 100% certainty that you caused your own injuries.
They only have to show that they are slightly more likely right than wrong that you did.

To learn if you can still get money if you can't prove your injuries were caused by your doctors' carelessness, I invite you to watch the quick video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer