Dismissing the Doctor in Malpractice Lawsuits Against a Hospital

Medical malpractice is largely a zero sum game. If it helps the defendant’s lawyer, it helps the plaintiff’s lawyer. We all pretend from time to time this is not so. But it is almost invariably true.

The question of whether to name doctors in a hospital malpractice case is one of those situations where it is best for everyone to keep the doctors out of the lawsuit. (Sure, maybe the public censure of a doctor through a civil lawsuit has value. But, ultimately, our job is to do right by our clients by maximizing the value of their malpractice case.) Plaintiffs’ lawyers prefer to name a hospital which is far less sympathetic than an individual doctor. It gives juries the opportunity to award fair damages without the pain of directly blaming a specific doctor (even in cases where obviously it was a single doctor’s fault). The doctor’s lawyer – even if the lawyer also represents the hospital – gets that a doctor does not want to have her name in the lawsuit.

Everyone’s happy. One problem: the general release of a doctor operates as a matter of law to release defendant from liability. And you don’t want to use the procedural leverage you have with defendant doctor in terms of reading deposition testimony at trial, etc.