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Getting past defenses to medical malpractice claims

In earlier posts we have discussed several aspects of medical malpractice actions in Connecticut, including some of the legal requirements to initiate a lawsuit and examples of actual medical malpractice lawsuits. Another consideration to keep in mind is that, as with any lawsuit, medical malpractice claims are not a one-way street. You can expect the health care professional, his or her insurer and the attorney or attorneys representing them to put up a vigorous defense.

Connecticut law recognizes several different defenses against medical malpractice claims, beginning with efforts to persuade the court that the plaintiff failed to follow the legal requirements to establish a valid claim (for example, failure to initiate the lawsuit within the relevant statute of limitations).

Other defenses will attempt to change the focus of the inquiry away from the defendant and onto the plaintiff instead. The defendant or defendants may argue that the plaintiff was also at least partly to blame for the injury he or she suffered (comparative or contributory negligence), or that under the "informed consent" concept the patient assumed at least some of the risk of the harm that occurred. They may claim that the harm was not the result of anything that the health care professional did, or that others were responsible for it.

Defense attorneys may also invoke legal defenses based on the general standard of care in the health care industry to argue that even if something went wrong, it was not the result of actionable negligence, or that the defendant was justified in the actions he or she took even if they were uncommon, the "respectable minority rule."

The point that we are making here is not that you should despair of prevailing if you have been harmed as the result of negligence on the part of the people and institutions that may have harmed you while treating you for an injury or illness. Our earlier posts about successful medical malpractice actions show that it is certainly possible to win such an action.

It should be clear, though, that you need to have experienced and capable legal representation of your own who are familiar with the procedural and legal obstacles that the defendants and their lawyers will try to place between you and the compensation you deserve, and how to overcome those obstacles as well.

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