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Getting Your Facts Straight


Some of the facts you will need to prove the elements of your claim will become self-evident early on in your preparations. Others will have to be hunted down. A fact can be defined as something that occurred or exists and is incontrovertible. While a fact can never be untrue, in the legal system the word can represent something that is disagreed upon by two parties and at trial the judge or jury will ultimately decide whether a thing asserted is a true fact or not.


The most commonly used and helpful method of working through the facts and elements of your cause of action is to write them out in outline form. Again, this process should be undertaken early on, maybe even before your complaint is filed with the court, or shortly thereafter, because these materials will help drive your process of discovery.


Now back to our example. Suppose you are continuing to process the medical malpractice case we touched upon earlier, the doctor who incorrectly set your broken elbow and left you with a painful, disfiguring condition called Volkman’s Contracture. As you are researching the case, you’ve correctly assessed that your filing will be well inside the statute of limitations window and you feel you’ve determined for the most part what the damages should be and your almost ready to submit your complaint.


Then you discover as you’re looking over your notes one last time that the state of Massachusetts (where you’re filing your claim) has a statutory hurdle you had not noticed before. It seems the legislature approved the formation of a medical malpractice tribunal to screen cases and discourage frivolous claims. The tribunal, comprised of a doctor, a lawyer and a Superior Court judge, examine all incoming medical malpractice claims before a trial date is scheduled and have the power to decide if each case is strong enough on its evidence to proceed. Litigants can proceed anyway even if the tribunal finds against them, but that would require a $6,000 bond – which would be forfeited to your opponent if you should lose the case – and since you are proceeding pro se, it makes sense to get your facts and elements and cause of action together before you file. After researching your claim and its elements, you are ready to start outlining.


Medical Malpractice Claim Against Dr. Hezknot Realgood


Complaint:  (cause of action) The Defendant failed to repair my injuries and caused additional damage to me resulting in substantial disfigurement, pain and suffering, medical expenses and lost income.


Element 1.       I was owed a duty by the defendant, Dr. Realgood, a professional physician, to render medical care for my injuries.


              Fact:  I was directed to Dr. Realgood, licensed orthopedic physician, to repair elbow injuries I sustained in a traffic accident.


              Fact:  After X-Rays determined my elbow was broken, Dr. Realgood manually set the break for healing.


              Fact:  The defendant immobilized my elbow in a cast for a period of six (6) weeks.


Element 2.       The defendant breached his duty by not rendering his services with the degree of care and skill possessed by the average qualified professional practicing in his or her field.


              Fact:  After incorrectly “setting” my broken elbow, the defendant did not reexamine or re-X-ray the injuries.


Fact:  The defendant did not advise me of medically known early-warning signs of Volkman’s Contracture.


Element 3.  I suffered injuries and damages directly as the result of the defendant's malpractice.


              Fact:  Two orthopedic physicians – expert witnesses – advised me that my condition could’ve been prevented.


              Fact:  These doctors also tell me my injuries are likely to be permanent.


              Fact:  With my elbow concealed and immobilized there was no way I could know or foresee the condition.


Element 4.       The damages that I have suffered lead me to petition the court in the amount of $114 million.


              Fact:  This circumstance has cost me $110,000 in direct medical expenses and fees.


              Fact:  My career as a major league pitcher is over. Over the course of 16-years, I would’ve earned some $38 million.


              Fact:  I am addicted to anti-depressants and painkillers. My annual pain and suffering costs come to $40,000.


              Fact:  Since Dr. Realgood has three other Volkman’s patients, he clearly has a history of flagrant disregard for his professional obligations. I petition for punitive damages of three times economic damages.


One thing this outline reveals is the potential for a third party injury claim. Do you see it? “I was directed to Dr. Realgood …” Who did the directing? Was it an HMO and did they perhaps have financial reasons beyond your best interests for sending your to Dr. Realgood? It is likely that the HMO has some significant level of exposure in this scenario and further information is needed to determine whether or not they can be named on the complaint too.


Once the facts are outlined you can proceed to the next step, detailing what evidence you will introduce to prove your facts.



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