People often come to me with what they think is a “clear case of medical malpractice.” She or he had surgery or some other medical treatment or were given medication and an adverse result followed. The potential client agreed to treatment by this physician or at that medical facility, with the expectation that the treatment would be successful in curing their injury or illness, yet that did not happen. Often times not only do their tales of woe include a result that was not what had been “promised” but they also suffered additional consequences like new or exacerbated pain or discomfort, numbness where there was none before or nausea/sickness. In some extreme cases, a completely unexpected consequence occurs, one for which the possibility of occurrence was not made known to the patient or a result that was completely unforeseen by the patient as a possible complication. These consequences are varied but sadly, can include death.
If a patient goes into the hospital for common surgery or what can sometimes be termed as “routine surgeries” – e.g. appendectomy, cataract surgery, coronary bypass, broken bone repair – he or she does not expect an extreme complication like those listed above. However, these results do occur, even after undergoing these “routine” procedures. Unfortunately, the misconception among many of our potential clients is that the mere happening of such an adverse result creates the existence of a medical negligence case.
This is simply untrue but allow me to explain why…
In order for there to be a viable medical negligence case, there needs to exist 4 separate factors. First, the doctor or hospital needs to have owed the patient a duty to care for the property. This part is almost always satisfied, as the potential client usually has gone to the physician’s office or to the medical facility for the specific purpose of having some sort of helpful treatment rendered. Next, there must have a breach of that duty of care. This is one of the first places a potential medical negligence claim can fail. In a nutshell, just because a bad result occurs does not mean that a medical professional has committed medical malpractice. There has to have been an action or actions taken by the practitioner that departed from what is known as the “accepted standard of care” for those professionals in the same or similar area of practice.
It is important to keep in mind that, for almost any medical procedure or treatment, there are a number of different surgical methods or treatment choices that a physician can select to use with a patient. The fact is that just because the physician chooses one way to proceed and an adverse result then occurs does not necessarily mean that the physician’s chosen method was incorrect/negligent and another method is correct. There has to have been a true mistake made, either in the physician’s choice of treatment or her/his performance of that treatment option. Additionally, it needs to be emphasized that for litigation purposes, negligence on the part of the physician can only be determined after the matter has been reviewed by another physician in that same or similar field (i.e. a medical expert).
The next part that must exist to have a viable medical malpractice case is what we call causation. This means the negligent act by the medical provider must have been an actual or significantly contributing cause of the injuries or losses incurred by the patient/potential medical malpractice I often illustrate this point to clients by explaining to them that timing does not equate to liability; in other words, just because the physician made a mistake and just because after that mistake was made the patient suffered additional injury or loss, does not mean that the specific injury or loss suffered was, in fact, caused by that specific negligent act by the medical provider. This is, again, where the medical expert is required to review the matter and make that legal determination.
Finally, the potential medical malpractice plaintiff must suffer actual damages – basically, the “no harm, no foul” rule. The reason for this is that, when a party files a lawsuit against another for causing him or to suffer injuries and/or losses, the only thing a civil court can do to compensate that party is to award money damages. If there are no losses or injuries that can be quantified, there is no medical negligence case to be brought. For instance, if the hospital nurse’s administration of the wrong medication could have caused brain damage (but actually did not) or if the radiologist’s failure to detect a mass on an imaging study that could have been cancerous (but was, in fact, benign), there were no actual damages suffered by the patient and therefore, no viable medical lawsuit. The damages evaluation is an important one in determining whether it is advisable to initiate a medical negligence lawsuit because these cases are among the most expensive to litigate and there has to be a likelihood of sufficient monetary recovery that makes incurring those litigation costs worthwhile.
If you have what you believe to be a viable medical malpractice case, please call us for a free consultation. Our medical negligence attorneys have been litigated hundreds of these cases and are happy to provide a free initial assessment of your claim.