One interesting thing about practicing medical malpractice law is the fact that people often think they have a good medical malpractice case when they do not have a case at all, and other people do not even consider filing a lawsuit because they do not recognize that they have a strong case.
It is always disappointing to have to tell a person who is suffering that the facts of their situation are unlikely to result in a successful outcome, but it would be cruel to put them through the stress of a lawsuit that we know would be destined to fail. Even more haunting are the potential cases we never hear about—the people who have been hurt and need and deserve compensation, but don’t bother to call a lawyer because they think it would be a waste of time. Time passes, and the window to file a claim slams shut forever.
It is for those people that we are writing this blog post. If you were injured or lost a loved one after medical treatment, and you are not sure if you have a case or not, the information below may help clear things up.
Medical malpractice attorneys compare a strong medical malpractice case to a three-legged stool. If one of the legs is weak or missing, the stool (or the case) is likely to fail. The three “legs” of a medical malpractice case are causation, damages, and a sympathetic plaintiff.
Causation is the first leg. Without causation, there is no case. Let’s imagine that a patient had symptoms suggestive of a stroke. However, he waited several hours before going to the emergency room or seeking other medical help.
Once in the emergency room, the patient and his spouse described the patient’s symptoms to the doctor. The doctor examined the patient and observed signs consistent with stroke. However, the doctor failed to administer clot-busting medication that can minimize the damage from a stroke if given shortly after the onset of symptoms.
Further testing revealed that the patient had indeed suffered a stroke and sustained serious, and likely permanent, damage. It may seem like an open-and-shut case of medical malpractice. Unfortunately for the patient, he is unlikely to recover any damages. The doctor had a duty to treat him according to the standard of care, and the doctor likely breached that duty. The patient clearly suffered serious consequences from the stroke.
However, the element of causation is likely absent. Yes, the doctor should have administered the clot-busting drug. But because the patient delayed seeking treatment, and the drug only makes a difference if administered promptly after the onset of symptoms, the doctor’s negligence probably didn’t cause the patient’s outcome; the patient’s own delay was likely responsible. In other words, even if the doctor had done everything she should have, the outcome would have been the same.
Damages are the second leg. If all of the other elements of medical malpractice are met, but there are no damages or minimal damages, it may not be worth filing a medical malpractice claim. To illustrate, imagine that a hospitalized patient ought to receive Medication A, but the doctor instead ordered Medication B. The patient had a mild allergic reaction to Medication B which was promptly and successfully treated, after which the error was discovered. The patient suffered no other ill effects and required no further treatment for the medication error.
There is no doubt that the doctor had a duty to prescribe the right medication, and breached that duty by prescribing the wrong one. The patient suffered an injury—the allergic reaction—that was clearly caused by the doctor’s breach of duty. But the patient suffered no real damages as a result of the negligence, so there would be little if anything for a court to award her in a malpractice action. If, on the other hand, the medication error resulted in permanent brain damage or death, there would be significant damages.
The last leg of a malpractice action is a sympathetic plaintiff. Imagine a doctor negligently damaged the vocal cords of two patients, rendering them unable to speak. The first is a young mother who is a volunteer counselor at a youth center in the community and sings in her church choir. The second is a career criminal with a history of drug use and a long string of petty offenses.
The young woman who can no longer speak to her child or sing to her congregation is certainly more sympathetic and likely to tug at a jury’s heartstrings than the petty criminal. But that doesn’t mean that the other patient wasn’t injured by negligence, that he didn’t suffer damages, or that he doesn’t deserve compensation for his injuries. But this history can add some challenges in presenting a plaintiff in the best light to the jury. Every person and every life lived is different and our firm has a great deal of experience working with people with all types of backgrounds. No matter their past, the most important thing we look for in any plaintiff is that they are honest.
Defense attorneys in medical malpractice cases very often try to paint an unflattering picture of a plaintiff to suggest that the plaintiff doesn’t need or deserve the compensation they are seeking in the case, or that they are faking or exaggerating their injuries. But you do not have to be perfect to deserve compensation when you are injured by medical negligence. It is the job of the medical malpractice attorney to help the jury understand that the plaintiff is a person who has suffered an injustice, and needs their help to make it right.
The bottom line is this: if you are convinced you have a medical malpractice case, you should call a medical malpractice attorney. An experienced attorney will listen to your story, help you understand how the law applies to the facts of your case, and advise you as to whether your case is as strong as you believe. An ethical attorney will never encourage you to pursue a claim they do not believe is likely to be successful.
You should also contact a medical malpractice attorney even if you are not sure of the strength of your case (or if you have a case at all). A consultation costs you nothing except a little time, and it can prevent you from losing the opportunity to present a claim if you have a viable case. We invite you to contact Huegli Fraser with any questions you may have. It’s better to call an attorney and not need one, than to need one and not call.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
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