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Medical malpractice attorneys: what it does and how to choose it

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What Does a Medical Examiner Do? When do you need a forensic professional?

A central figure in disputes in medical-health and civil liability matters , the forensic doctor is a health professional who deals with the relationship between the psychophysical aspects of the human person and the legal-social order or, in the sense still more generally, between anthropobiological reality and law.

The scientific discipline in which the forensic doctor specializes is, precisely, forensic medicine , which is characterized by the fact that medical knowledge related to the human being is not used in a preventive, diagnostic or therapeutic key, but is oriented to the practical evaluation of biological situations. of legal interest. In addition to forensic medicine in the strict sense, social medicine, pathological anatomy, psychopathology and forensic toxicology, criminology, medical ethics and clinical bioethics constitute specific areas of competence of the forensic physician.

No more high-sounding terminology, now, let’s really understand who the coroner is and what he does .

SUMMARY OF CONTENTS | THE LEGAL DOCTOR

1. How to become a coroner (who is it)

By forensic physician, we cannot limit ourselves to understanding the mere medical and surgical graduate who delights in forensic medicine, perhaps in the context of other specialized activities. Often, in fact, we witness the paradox that, in the medico-legal sector, health professionals of different origins are working (internists, dermatologists, ophthalmologists, orthopedists, etc.) who have come to this practice without any real –or, at least, solid cultural and scientific training.

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The forensic doctor , in the strict sense, is the only one who, after graduating in medicine and surgery (6 years of course), has successfully attended and completed a specialization school in forensic medicine , with a duration of 5 more years. Possession of the specialization degree, incidentally, cannot be substituted for attending other and different training courses or advanced courses (not even at the level of a university master’s degree), which therefore – as has been adequately clarified – do not allow the acquisition of title. of Specialist Medical-Legal .

The difference is not insignificant, not only in terms of competence, but also in terms of the possibility of performing the typical activity of the forensic doctor. The “Gelli” law , for example, on the safety of care and the professional responsibility of health workers, has established that the assignment of technical advice in civil and criminal proceedings related to health responsibility can only be carried out by a physician specialized in forensic medicine. medicine.

2. When the medical examiner is needed (what does he do)

During the course, the forensic medicine specialist learns the necessary notions to meet the medico-legal needs of the SNS, social security agencies (public and private), judicial and penitentiary administration, public agencies, insurance companies, and also private citizens .

The main activities of the forensic doctor are carried out using their own biological and lato sensu scientific knowledge in the field of medicine, and applying them according to the assessment and valuation of rights , or in any case of situations of legal significance.

But what issues does the coroner work on?
In short, we can say that its abilities extend to the following:

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a) private insurance , and specifically in the “life” and “personal injury” classes;
b) traffic accidents and injuries related to the movement of vehicles;
c) health liability , damages for ” medical negligence “, medical errors and, in general, organizational profiles of health establishments;
d) Financial disbursements or services provided for by the welfare, welfare and social security system .

So, let’s see what the coroner actually does in each of these sectors.

2.1 The role of the medical examiner in private insurance matters

Whoever stipulates an insurance contract, tries to guarantee himself against the cd. “Alea” a risk , or rather limit its harmful consequences by transferring certain economic effects to an Insurance Company, which undertakes – in the face of the actual occurrence of that risk – to indemnify the insured by means of the payment of capital or an annuity, according to the agreements.

The intervention of the forensic doctor in the field of private insurance is mostly necessary:

  • in the “life” business , and specifically in those contracts that ensure capital in the event of disability due to illness, accident or old age, providing for the disbursement of an annuity upon the occurrence of disability;
  • in the field of “personal injury” , when the private insurance covers the risk of accidents, recognizing an economic benefit in the event of temporary or permanent disability, and other related events (application of casts, hospital admissions, post-surgical convalescence, treatment expenses and medications, etc.).

In these cases, without prejudice to the general principle according to which the protection of individual rights belongs to the competence of the lawyer , the support of your trusted forensic doctor is really important if you want to avoid that the offer of compensation is formulated unilaterally by the lawyer. safe. company. The preliminary drafting of a partisan medical-legal report will help the insured person (and their lawyer) to understand the scope of the consequences compensable under the policy , as well as to describe the causal link between them and the injury. It will also provide a solid basis for profitable negotiation with the Insurance Company.

Do you need a medical examiner to claim damages?

2.2 The forensic doctor in traffic accidents

When you see involved in a traffic accident , both as a driver of a vehicle (which is not solely responsible for the accident) and, a fortiori , as a third party transported , one of the concerns most deeply felt is, understandably, to obtain a adequate compensation for pecuniary and non-pecuniary damage suffered. Here, then, is the importance of the figure of the forensic doctor in traffic accidents .

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Non-pecuniary damages, in particular, include:

  • the biological component (understood as damage to health, either physical or mental), which in turn is divided into:
    • in temporary disability , which contemplates the period in which the injured party was unable to attend, totally or partially, their ordinary occupations (professional, domestic or recreational);
    • in permanent disability , which is translated into percentage points of biological damage, in the sense that, given the psychophysical integrity of the individual, the percentage of permanent disability “measures” the negative variation reported by the injured on the result of the accident (as such , must necessarily be evaluated based on the outcome of the patient’s cure or “stabilization”);
  • the moral component , that is, the internal suffering related to the accident;
  • any dynamic-relational component , defined by some (unduly) as “existential”, that develops in the context of the relationship between the injured party and external reality (with everything that constitutes “other than oneself”) and can be compensated in the presence of anomalous, exceptional and completely peculiar harmful consequences.

Well, the medical examiner is a fundamental help in evaluating the scope of compensation for damages caused by a traffic accident . In fact, with specific reference to the different components into which -as we have seen- non-material damage is divided, the biased medical-legal report will constitute the necessary basis for an exact calculation of the extent of the related damages and, consequently , of the amount of compensable damage.Only in this way, thus relying on a solid medical-legal assessment, will it be possible to establish a constructive dialogue with the Insurer, avoiding that it is limited to offering compensation for a sum (mostly reductive) determined solely on the basis of the results themselves, if not of his own free will, thus obtaining adequate compensation.

ยง 2.3 Medical examiner and “medical negligence”

Even in the context of medical liability, the support of the medical examiner is critical to successfully managing a CD case. “Medical malpractice” , both in criminal and civil matters.

In this sense, it must first be said that it is (almost) always preferable to refrain from filing a complaint for medical negligence , for a series of reasons ( detailed here ) related, in a few words, to the fault profiles and the etiological link, as well as at the opportune moment of the prosecution. Therefore, it is mainly advisable to pay attention to the civil aspects of a medical malpractice case, claiming compensation for the damages suffered by the patient or their relatives (in the event of death), with the exception of some exceptional cases .

In any case, the lawyer specializing in health liability (who is, remember, the only person to whom it is appropriate to turn for medical malpractice ) certainly needs to create a technical school composed of a forensic doctor and one or more doctors. specialists in the reference discipline (s), in order to adequately “instruct” the case.

In particular, the following activities are reserved for the dialogue between Lawyer, Legal Physician and Specialist :

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  1. Identification of guidelines , good care practices, as well as indications extracted from the scientific literature, pertinent to the clinical situation;
  2. Analysis of the divergence aspects between the sanitary conduct carried out and that which is reasonably due ;
  3. Identification of any gap in the clinical documentation and weighting of the relative consequences in the division of evidentiary burdens between the parties;
  4. Evaluation of the causal link , according to the principle of “relative probability”, in matters of (material) causality, both omisive and commissive;
  5. Description of the damage and its specific components , in order to highlight the scope of the damages that can be compensated for being attributable to the harmful event (the so-called legal causation);
  6. Direct participation in any autopsy or diagnosis finding (note, in this regard, that article 4 of the Gelli Bianco law provided for the possibility of agreeing with the Medical Director on the presence of a trusted doctor for related operations).

It is hardly necessary to remember, in any case, that the lawyer is the expert in medical malpractice , and not another figure, the person to whom the law assigns the institutional function of guaranteeing citizens the effectiveness of the protection of rights. even in medical-sanitary matters (article 2 of Law 247/2 0 12 ).

Looking for a medical examiner to evaluate an episode of “medical malpractice”?

ยง 2.4 What the forensic doctor does in the field of social security and assistance

As is well known, “social security” and “social assistance” fall within the more general concept of “social security”, which indicates the set of public interventions designed to support citizens in need, through the provision of various provisions. In particular, a distinction is made between:

  • social security , dedicated to the specific protection of workers, and
  • social assistance , aimed at the protection of all indigent citizens, in case of need (it does not matter if they are workers or not).

More specifically, social security benefits are granted to replace or complement work income and linked to certain events in working life, such as:
a) old-age pension (upon reaching a certain age or seniority in contributions);
b) the disability pension (for loss of work capacity);
c) disability allowance (reduction of work capacity); d) Survivors ‘or survivors’ pension (due to the death of the pensioner).

On the other hand, social benefits are granted for people in economic difficulties, families, the disabled or the elderly, such as:
a) Aid for large and / or low-income families (maternity subsidy, subsidy for family unit with three children under age). , kindergarten, scholarships, books, school canteens, tax exemptions on university fees);
b) home and residential social health services (remote assistance, meals at home, hospitality in nursing homes and / or nursing homes);
c) economic concessions (on public services, such as electricity, telephone, gas or contributions for leases).

In this sector, whenever the benefits (social security or welfare) require the verification of a state of incapacity and / or invalidity , the quantification of the relative entity, its causal derivation of a specific event or a specific situation, the assistance of the The forensic doctor is, without a doubt, essential to allow an informed dialogue with the bodies that are called upon to assess the existence of the conditions to grant the benefit, and to propose any remedy against a denial or unsatisfactory recognition.

ยง 3. Curiosities and resources regarding forensic medicine

The first case in which a medico-legal assessment marked the course of a criminal process – it is said – dates back to the end of the seventeenth century. In 1682, in particular, a young woman was accused of killing her own newborn son. In the courtroom, the pathologist (Dr. Johann Schreyer) gave the judge a spectacular demonstration: he submerged an infant’s lung in a tub filled with water . The organ, evidently devoid of air, sank to the bottom, whereas it should have floated if the baby had breathed at least once. Thus, it was shown that the child was stillborn and the mother, who was in danger of being hanged, was acquitted.

The undoubted fascination that characterizes the forensic profession has certainly contributed to the centrality of this role in many works of literature , film, and television .
The most famous person, internationally, is probably Dr. Kay Scarpetta , fictitious director of the Institute of Forensic Medicine of Virginia (USA) and protagonist of the successful novels of the writer Patricia Cornwell .
Several television series have focused on the figure of the coroner: from Rai’s recent fiction “The student” , extracted from the book of the same name by Alessia Gazzola (also a forensic, by the way), to the most outdated “Valeria forensic “which goes back to the year 2000, to the American” Body of Proof “, which tells the story of a brilliant neurosurgeon forced to retrain – after a car accident that deprived her of the necessary precision in her hands – as a forensic ( or, more precisely, as ” forensic doctor “).
But the character on the small screen that the Italian public has liked the most over the years is undoubtedly Dr. Pasquano, forensic of the television film series about ” Commissario Montalbano “ (born from the novels of Andrea Camilleri ), played on TV by the unforgettable Marcello Perracchio .

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For each his own forensic doctor, therefore.

In order to be able to draw up lists of professionals who really deal with forensic medicine, and not just for entertainment purposes, here is a list – without pretending to be exhaustive – of the main medical-legal scientific associations present in the Italian territory. :

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