Recently in this blog we discussed the three components of a strong medical malpractice case. Not all negative outcomes from medical treatment or procedures are due to malpractice, and sometimes we have to tell people that we don’t think it’s fair to put them through the stress of a lawsuit that is unlikely to be successful, because the elements of medical malpractice are not present.
Then, sometimes, the shoe is on the other foot. A patient has sought out medical treatment for an injury or illness, but things don’t get better, or get worse. The patient may assume that treatment was just unsuccessful, as sometimes happens. They may assume that recovery is taking longer because they are older or not in the best shape.
Often, patients assume that a given outcome was inevitable; they don’t realize that with different choices or actions on their doctor’s part, they might not be suffering, or suffering as much. And sometimes, doctors themselves dissuade patients from questioning whether the treatment they received was appropriate.
Whatever the reason, many people never think to question whether they might have been victims of medical malpractice. Not all medical malpractice is obvious, like an amputation of the wrong limb. And medical malpractice is surprisingly common. Studies have identified medical error as the third leading cause of death in the United States, behind only heart disease and cancer. And those are only the errors that result in death—many more mistakes result in less serious, but still life-changing, injury.
So, absent an obvious error, how do you know if your injury was caused by medical malpractice? Here are some signs to be on the lookout for. None of them is a guarantee that you have been a victim of medical malpractice, but all of them mean you should consider the possibility.
Of course, some medical conditions deteriorate even with the best treatment. But often, when your condition doesn't get better even when your doctor tells you it will, it means that something has gone wrong. It may mean that your doctor has misdiagnosed you, and the treatment you are receiving is not effective for the problem you actually have.
Be especially wary if your condition takes a sharp turn for the worse immediately after, or in conjunction with, treatment. That could be an indicator that the treatment itself is negatively affecting your condition. In some cases, the damage could be severe or irreversible.
You may not be a medical professional, but you are the only person who has ever occupied your own body, and you are an authority on how it feels to be in that body. If you go to your doctor with a problem and describe your symptoms, your doctor may propose certain tests and/or treatment. If the tests don’t yield answers, and the treatment doesn’t yield results, what’s next?
Your doctor is supposed to be your partner in your health care. You bring your knowledge of your own body and experiences, and your questions; your doctor brings his or her medical expertise and practice experience.
Your doctor should be willing to listen to your concerns and explain what they think is going on, and what that opinion is based on. A doctor who refuses to listen to you, or tells you your pain is “all in your head,” may think that they have all the answers. That may mean that they fail to order diagnostics that would reveal the source of your medical problems, and miss a diagnosis.
A related sign is when your doctor refuses to answer your questions or address your concerns after a procedure they performed. That could reflect a recognition on their part that they made a mistake. You may also be contacted by someone from risk management or the medical provider’s quality assurance office. It is generally good advice to speak to an attorney prior to talking to representatives for the medical provider about “what happened” to you or your loved one.
Doctors are required to inform you of the risks of undergoing major medical treatment such as surgery so that you can decide whether the risk is worth the anticipated benefit. This enables you to give what is called “informed consent.” It’s so important that failure to obtain informed consent from a patient before a procedure is, itself, a type of medical malpractice.
So, your doctor will inform you of possible complications of your procedure, both common and rare. But if you experience an outcome that is both severe and outside the range of what you had been led to expect, it could be a sign that your doctor committed a serious error. One example would be excruciating, ongoing pain in the weeks following a relatively simple abdominal surgery—because the surgical team left a sponge behind in your abdominal cavity.
Unless your doctor committed an error so major and obvious that a lay person would recognize it, you probably won’t be sure that medical malpractice took place. That’s okay. You should still consult an experienced medical malpractice attorney even if you have the slightest suspicion that you might have a malpractice claim.
If you talk to an attorney who concentrates their practice in medical malpractice, they have the experience to help assess your experience. The attorney may tell you you don’t have a case. At least then you will know, and you can move on. The attorney will not tell you that you have a good case if you don’t. Medical malpractice cases are a lot of work and expensive to put on, and a reasonable attorney will not want to go to the effort and expense of litigating a case that is unlikely to yield a good result for their client.
On the other hand, if you do have good reason to file a malpractice claim, and you don’t do so within the statute of limitations, your chance to recover money for your injuries is gone forever. It’s much better to invest a little time in running your case by an attorney. A good first step is to request a copy of your medical records to allow an attorney to evaluate your medical case.
If you have any questions about whether you were a victim of medical malpractice, we invite you to contact Huegli Fraser to schedule a complimentary, no-obligation consultation.
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.
© 2021 Huegli Fraser PC