How does one evaluate whether there is a valid claim for medical malpractice?

Is there negligence?

Just because you were injured does not mean you have a claim for malpractice. You have to show negligence for there to be a claim. “Negligence” is the failure to act reasonably. In the medical context, this means that the health care provider did not do something that should reasonably have been done, or did something that reasonably should not have been done. This is often referred to as the “standard of care.” You hear this question asked: “Did the doctor meet the standard of care?” This is the same question as: “Was the doctor negligent?” So, you need to determine the “Standard of Care.”

Determine the standard of care

This is different for every endeavor. You may need to consult with a similar health care provider to get this answer, or perhaps the standard is obvious and you can find it in medical literature. An example is wrong-sided surgery. The surgeon has the duty to be sure that the surgery is on the correct side of the body. X-rays are easily flipped and look the same, but on the wrong side flipped. So, the standard of care requires the surgeon to confirm with the patient which side is to be operated on. Usually the patient will be asked to mark on their own body where the surgery will be. Another obvious example might be the presentation in the ER with unexplained severe chest pain. This may require a differential diagnosis including a heart attack. So, if the patient is sent home without the analysis, but with antacids, there may be a problem.

Was there a breach of the standard of care?

If the doctor/hospital followed the standard of care, there is no negligence and no claim, even if the patient dies! Nastiness and rudeness are not actionable! (Doctors: you should know that the quickest way to drive your patient to a lawyer is to be rude and the best way to avoid even a valid claim is to be reasonable).

Did the breach of the standard of care cause any damages to the patient?

For there to be a case, the breach has to cause the damages. In the above ER example, if the patient is not evaluated for a heart attack and sent home with antacids but is run over by a car on her way home, there is no case. Many poor results are caused, not by negligence, but by the original injury/ailment. Stated another way: even with the best care, there can be poor results. They are not actionable.

Was there informed consent?

This theory is an alternative (or additional) theory to proof of negligence. In a non-emergency setting, when a patient is deciding whether to undergo a particular course of treatment, the physician has a duty to explain the possible outcomes of the choices and to explore with the patient why one choice is better/worse than another. The patient then has the right to choose. The informed consent needs to really be that, not just the signing of a form. If the patient has been appropriately informed of the risks and benefits, the occurrence of the foreseeable results will not support a claim for lack of informed consent. So, if death was given as a possibility, and the patient dies without negligence, there is no claim for lack of informed consent. However, if the physician acts as a salesman, and attempts to push the patient one way of another understating risks, or overstating benefits, and then there is a foreseeable result, there may be a claim for lack of informed consent.

The damages have to be significant

Medical malpractice cases are big deals. They are very expensive to prosecute due to the needed testimony from appropriate experts. From a societal viewpoint, claims brought over slights, damage the patient-doctor relationship, and damage the legal profession as well. So, if your doctor prescribes the wrong course of action for you, and you lose a week of work, or if your doctor is rude to you and won’t renew your prescription forcing you to see another doctor — forget about bringing a case — it just isn’t worth it! However, if the doctor was supposed to amputate your gangrene left leg and instead takes off the healthy right one — sue him/her!

Can you collect the judgment?

Even if you have a perfect case, if the doctor has neither insurance nor assets that you can reach with a judgment, you may see nothing from a lawsuit. However, this may not be a sufficient reason to not bring the case. It just needs to be considered. Depending on where the case is brought, the judgment might be good for a long time. Assets may have been accidentally left within the reach of a judgment. (Hidden assets can be often be found and taken to satisfy a judgment).

Clifford M. Miller

Florida Bar Board Certified Civil Trial Lawyer

Miller Law Offices

3760 20th Street

Vero Beach FL 32960-2464

772-562-4570

vblawyer@bellsouth.net