Plaintiffs' Intention to Pursue Medical Lawsuits:

Some Case Studies

Abstract

A medical lawsuit places many demands on the plaintiff. Even the victorious plaintiffs we interviewed as part of our study were not satisfied with the result. The defendant doctors' failure to apologize upfront was the most common reason for plaintiff dissatisfaction. Plaintiffs believe that it is only natural that doctors apologize if they failed to provide proper medical care and caused unexpected adverse effects. It is presumed that plaintiffs, ordinarily laymen in the eyes of the law, consider doctors as liable to provide treatment and, at the same time, proffer apology for any failure to perform their duties and have adverse consequences. If so, it is possible that the liability that plaintiffs intend to pursue may exceed the doctors' liability for negligence. Therefore, in this paper, we examine the liability that plaintiffs intend to pursue against doctors.

We show that a doctor's obligation is “doing the best in his/her power and paying reasonable attention” and that this obligation (Article 415 of the Civil Code) is based on liability for negligence. In our report, we describe a case where a plaintiff pursued a liability against a doctor who failed to care for his child patient. The plaintiff alleged that the doctor failed to care for the child as an individual and did not treat him diligently. We show that this liability was “liability for process.”

In this case, “liability for process” was found to be a double-edged duty, applicable not only to doctors but also to plaintiffs. For many plaintiffs, the process of pursuing “liability for process” corresponds to the process of seeking closure.