A medical catastrophe happens. There is a severe injury or death. We get the call about a possible malpractice case. From the caller’s perspective, these things are not supposed to happen and, if it did happen, then someone must have screwed up. The doctor was negligent.
Maybe not.
Almost any medical procedure or treatment has some element of risk. The risk of something really bad occurring may be minuscule, but it’s there. Such risks are typically referred to as complications or side effects. Sometimes there are huge risks involved for various treatment options. We have all seen the pharmaceutical ads on television. At times the laundry list of side effects is almost amusing, like one noted to cause “greasy flatulence,” but sometimes they are super serious – death, for example.
If you take an indicated medication or undergo a necessary treatment that causes a complication, even an extremely serious one, you probably do not have a malpractice case. Under the best of circumstances and at the hands of very skilled providers, bad outcomes can happen. That’s just a reality of medical care.
What many people do not grasp, is that even if the odds of something awful occurring are very small, if it happens to you it’s 100%. The odds might be one in a thousand, but the patient does not suffer .1% injury or death. They are all in, so to speak – the one person out of one thousand. In many instances, you can’t really describe such situations as anything more than bad luck.
A doctor can do everything right and the patient can still have a disastrous outcome. A bad outcome does not prove negligence. One might think that juries or even judges might be swayed by some disasters that befall patients. That’s not been my experience, however. In our Federal Tort Claims cases there are no juries and judges try to follow the law – and they tend to have a good feel for experts who are stretching. Hence, for these cases we are especially cautious about litigating cases where there is a strong argument that what happened was just a complication.
Juries are often maligned, but my experience has been that they too can grasp the idea that someone can do everything right but still have a bad result. In some ways, it’s just the extension of common sense. We’ve all had the experience of doing what we were supposed to do but having it all blow up. It doesn’t mean you did anything wrong. As a defense lawyer, I tried well over 100 medical malpractice jury trials. A fair number of times those cases involved situations where a patient had a very bad outcome, but it was not as clear that the doctor did anything wrong. Looking back, I have to say that most of these juries got it right – even in those cases I lost. Most juries, most of the time, try hard to be fair. They may have sympathy for someone who has suffered a huge loss, but they also need that proof that the defendant’s acts or omissions are what caused it.
It is a reality of medicine – and, therefore, a reality of medical malpractice cases – that complications are not negligence, no matter how bad they are. We owe it to our clients and prospective clients to be upfront with them. We do no one any favors by taking on cases where we can’t prove that some act or omission of a healthcare provider caused the injury, no matter how bad it is.