When lawyers analyze medical malpractice cases we work backwards. That is to say, we start with the law that the judge will give to a jury at the end of a trial – which is an event that may be a few years away from the intake of a case. But it is that law that guides the analysis.
There are three essential parts:
- Negligence
- Causation
- Damages
Negligence:
Medical malpractice is negligence by a medical professional (doctor, nurse, physician’s assistant, etc.). It is, in the language of the law, a departure from customary and usual medical practice.
Or, as I like to say, it’s similar to backing out of a driveway without looking.
Many of the cases are defended on another principle that the judge will give to the jury before it deliberates — that “mere errors of judgment” are not negligence.
It is this conflict — is something a departure from good practice or a mere error of judgment? — that underlies many malpractice cases. This, oft-times, runs headlong into a “battle of the experts” with some saying there is a departure from practice and others saying it was just an error of judgment.
Given the huge reluctance by juries to bring back verdicts against medical professionals, these concepts lead malpractice attorneys to be highly selective in the cases we take. You can read about the vetting process here.
Causation:
Assuming one gets past the hurdle of proving, by a preponderance of the evidence, that the medical professional was negligent, you must still prove that it was a substantial cause of injury.
Now this part about being “a” cause, as opposed to “the” cause is important, for injuries may come from multiple causes. As an example, a woman goes to a doctor with a lump in her breast and the doctor says, “Don’t worry about it.” Ten months later the cancer is found. The doctor didn’t give her the cancer, but did contribute to the delay in prompt and proper treatment. There are, therefore, multiple causes of advanced disease.
In a malpractice suit the doctor would only be liable in such a case for the additional injury caused by the delay.
Damages:
The third part is damages. In the above example regarding the failure to promptly and properly treat breast cancer the doctor is responsible only for that part s/he caused. But remember, this part only comes up if the jury finds both negligence and causation.
A final note:
Sometimes, a lawyer will do the analysis in reverse, and start with damages. Why, since a jury doesn’t even discuss damages without negligence and causation?
Because medical malpractice cases are so very expensive, difficult and time-consuming, it is often true that the extent of the injury simply doesn’t warrant the other analysis. In other words, with smaller injuries, the medical community enjoys de facto immunity from suit.
This list shows some of the medical malpractice cases that Turkewitz has handled.
