But That Doctor ALMOST Killed Me…

In some form or another, we often hear this from prospective clients – after we have declined to take their case. To prove a case of medical malpractice, you have to prove that the care provided was negligent, that it fell beneath the standard of care. Just as importantly, you must prove that the negligence caused harm. By itself, grossly deficient care does not support a viable malpractice case. You must have an injury which is proximately caused by the deficient care. Generally, both elements require expert medical testimony.


We are frequently contacted about possible cases where the care involved was truly atrocious. We don’t need an expert to figure that out. However, in many instances it is not clear that the horrible medical care caused an actual harm. A classic example is where a patient presents to an ER with complaints of chest pain. Without doing any of the appropriate tests to rule out a heart attack, the patient is diagnosed with reflux, a gastrointestinal issue, and sent home. The patient goes to a different hospital where the correct coronary diagnosis is made, and appropriate treatment instituted – the same treatment that would have been provided earlier if the first hospital had gotten it right.


If the patient had died at home after the first ER encounter, his or her family might have an excellent wrongful death case. If extensive heart damage had been done because of the delay, the patient might have a decent case. However, where the patient gets the same treatment he or she would have gotten earlier and has the same prognosis, then it is almost impossible to prove that the original negligence proximately caused an injury. To lay people, it seems ridiculous that a healthcare provider could plainly endanger them, but they still don’t have a case. That view is understandable, but malpractice cases are about what we can prove – and the law requires that we prove an actual harm.


Often, the situation is not so clear cut. Maybe there is some injury or harm that can be tied to the negligence. If nothing else, maybe there was added time in the hospital or expenses. In those situations, the call is a bit harder to make, but the plaintiff still likely faces an uphill battle. Let me give an example from my days as a defense lawyer. A patient underwent neck surgery. During the procedure, her esophagus was perforated. The perforation was a complication, not negligence. However, both the on-call surgeon and the hospitalist were slow to diagnosis it. An esophageal perforation is a very bad complication. It is fortunately rare, but frequently deadly. This patient had a horrible time. She really did come close to dying on several occasions. The medical bills were huge, which is what happens when you are in the ICU for three months. However, the patient survived and by the time the case was tried two or three years later, she was basically fine. Despite having a good lawyer and a compelling factual scenario, the jury had no problem quickly returning a verdict in favor of both doctors.

Juries and judges are usually sympathetic, and they will act on that sympathy. Almost thirty-seven years of doing this has taught me that many times, but I have also learned that juries want to fix or mitigate someone’s actual condition. Generally, in medical malpractice cases, they are loath to compensate someone just for having had a rougher time than anticipated. That sounds harsh – and it can be – but it is another reality of these complex cases.


There is an old humorous expression that “close” only counts in horseshoes and grenades. That’s sort of true in malpractice cases too. Still, it is often hard to turn down cases where the facts can be so ugly. People want some justice or at least recognition for what has happened to them. However, we are not doing anyone any favors by taking a case where there is not a reasonable chance of getting a recovery for the client. Sometimes that means we must be blunt with people. When someone gets mad and declares that the doctor nearly killed them, we might remind them that, in fact, they are not dead – and we assume they would rather be alive. Most of us would make that pick rather easily.


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