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content, negligence means the failure to use that degree of skill and
learning ordinarily used under the same or similar circumstances by
members of the defendant’s profession. This must be proven
through testimony of expert witnesses who establish the applicable
“standards of care” and explain how the health care
provider deviated from those standards. For example, physicians have a
duty to take an adequate medical history, to do a proper examination
and order necessary laboratory studies, to properly interpret and
advise about test results, to engage in thoughtful differential
diagnosis of signs and symptoms, to disclose significant risks and
obtain informed consent from patients, to give treatment only for
proper medical reasons, to prescribe correct medications and provide
proper follow-up, to obtain appropriate consultations, and to provide
patients with current therapy and treatment options.
A bad result does not
necessarily mean that malpractice occurred. Though recent studies
suggest that medical errors cause many more injuries and death than
originally thought, medical malpractice occurs only in those cases
where a medical provider breached a standard of care to the patient.
Furthermore, it must be established that the breach of that standard of
care caused the injury to the patient. It is not enough to show that a
mistake occurred and that a patient was injured, or sustained a poor
outcome. For more information on the frequency of medical treatment
errors, see our malpractice study page.
Even though a person may be able
to establish that there was malpractice does not mean that the
malpractice will lend itself to the filing of a lawsuit (litigation).
This is because the injured person must also establish that there was
an injury, loss or damage that was caused by the malpractice. It is
important to understand that a poor result, a non-successful result, or
dissatisfaction with a result of a medical procedure is not, by itself,
proof of malpractice or the basis of a claim. Medical treatment or
procedures do not come with a guarantee that the doctor will produce
the result desired.
Negligence must be proven
through the use and testimony of expert medical witnesses, because
typically the issues involved are beyond the knowledge of the ordinary
jury. The doctor, or his or her lawyers, will hire their own experts to
defeat the case. A judge or jury must then decide which experts offer a
more credible explanation for the doctor's conduct, and whether it fell
below the "accepted" standard of care required under the circumstances.
The Causation Defence
“Causation” is an important legal principle which
means in the practical effect that the injured party has the burden of
proving a direct connection between the negligence act of the health
care provider and the injuries and damages claimed. Many malpractice
cases are defended on the ground that there is no causal relationship
between the claimed damages and the alleged negligence. This is
sometimes referred to as the “so what” defence. It
is simply not enough to prove that a physician has fallen below the
standard of care. It is necessary to show that the departure from
acceptable practice led to the injury. It must be shown that the
malpractice caused the injury. Defence lawyers and the experts they
hire are very skilled in offering explanations to "prove" that the
injury or medical result was caused by some other event. In fact, in
many cases, the defence often claims that the injury or medical result
would have occurred regardless of the doctor's actions or inaction.
Sometimes the defence can even agree that malpractice was committed,
and then offer, "so what?" Again, this issue becomes a "battle of the
experts" and the trier of the facts is left with making the ultimate
decision. This is often the battleground around which malpractice cases
are fought.
Once again, expert witnesses are
necessary to establish the causal connection between the malpractice
and the damages. Even where the conduct of the physician cannot be
justified, an expert may be willing to say that the negligence
didn’t make any difference; and that the injury would have
occurred whether the negligence occurred or not.
Should You Sue?
Most people who come to us have
both a poor treatment outcome and an unsatisfactory explanation of the
reasons (or no explanation at all) from the health care provider. A
poor outcome, of itself, is not evidence of medical negligence. An
investigation of the true facts is necessary before we can say if you
have a case. There are many explanations for poor outcomes unrelated to
negligence. Sometimes conditions are not easily treatable and treatment
simply fails. Doctors are not guarantors of results of even the best
therapy. Sometimes treatment, like surgery or chemotherapy, carries a
risk of complications, like infection, for example. If a person has
been properly informed of the risks, and given consent, health care
providers are not liable for the known complications of treatment.
Where more than one treatment option is available and acceptable, and
the option chosen either does not provide a cure or causes a
complication, the health care provider is not responsible. This is
called an error of judgment, and is not negligence. As mentioned
earlier, in some cases, the health care provider may, in fact, have
been negligent, but the negligence may not have caused significant
injury, and we might not recommend that a case be pursued. There are
also some cases where there is clearly negligence that caused injury,
but the damages are not sufficiently severe to justify the response of
a medical malpractice case. Damages must be proven. That is, assuming
that negligence resulted in an injury, what damage has occurred and how
is it measured? Once again, experts are often relied upon to prove
these matters.
The Medical Malpractice
Case Evaluation
We begin with an initial
investigation of your case. We first take a detailed history from you
or your family and then decide whether the case is one which falls
within our expertise and interest. We also determine whether your
damages will make bringing an action worth while. This is followed by
the collection of all pertinent medical records directly from the
health care providers. We review and analyze the records to determine
what happened and identify issues relating to the standards of medical
practice. If we suspect here is a significant possibility that medical
malpractice occurred, we will provide your records to appropriate
experts for review, asking them for their opinions on the issues of
negligence, damages and causation. Often these experts must come from
other cities or jurisdictions as local experts to not wish to testify
against their colleagues. The financial arrangements for investigations
are determined on a case-by-case basis. For more information see our medical malpractice case evaluation page.
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