Frequently Asked Questions

Injuries sustained during the course of medical treatment, may result in a right of legal action against the doctor or hospital. Two common questions keep occurring, and the answers to these two questions go a long way toward determining whether a person has a medical negligence case or not.

I. Was There Something More Than A Bad Result?

It is not unusual (unfortunately) for someone to have a bad result during the course of medical treatment or hospital stay. Sometimes I we get telephone calls from people who have sustained terrible injuries during the course of their medical treatment, or even reports that a loved one has died as a result of injuries sustained during medical treatment. They want to know whether they have a case.

It is not enough for a patient simply to have sustained a bad result from a medical care provider. Medicine is not completely predictable, and there are occasions in which doctors must exercise professional judgment that turns out, in retrospect, to have been a mistake. A bad result, in and of itself, is not proof that a medical professional did something wrong. Moreover, under the law of medical negligence, it is not enough that the doctor may have even made a mistake in producing that bad result. What the injured patient is required to prove is that the doctor made a careless mistake.

By "careless," we mean that the doctor or other professional medical care provider did not follow accepted standards of care in rendering medical services to a patient. If the doctor's mistake is a careless one, and damages result, then the patient has a right to pursue a medical negligence action. A good example of this might be a situation where a woman is undergoing a hysterectomy and, during the course of the hysterectomy, the surgeon places an incorrect suture that damages another organ. The doctor has certainly made a mistake, but it would be the patient's burden to prove that the mistake was one which occurred because the doctor was being careless, as opposed to simply being a risk or complication of the procedure, which can occur even when a doctor is exercising appropriate care. Depending upon the complexity of the operation and the area in which the doctor is working, injuring another organ during the course of a surgical repair procedure may or may not be carelessness by a medical professional.

II. Has There Been Damage?

The second misunderstood area of medical negligence law involves the requirement that the patient prove damages. As a practical matter, it is often not enough that the patient has sustained some damages. Because medical negligence cases are complex and costly to bring, there is generally a practical requirement that the patient has sustained substantial damages in order to make the significant efforts involved in litigation economically worthwhile.

However, it is often the case that a doctor or hospital will make a careless mistake, and the patient will have suffered little or no damage. For example, a doctor may make a diagnostic error because of carelessness, but the error may be picked up by another physician before the faulty diagnosis has done any damage to the patient. Sometimes we get called by people who are quite upset with their doctors because of a careless diagnosis for which the doctor has not apologized. But no matter how careless the diagnosis, there is no case if the careless diagnosis did not contribute to some type of actual damage. A good example are appendicitis cases where the doctor should have made the diagnosis earlier than it was actually made. Nevertheless, given that surgery is required of appendicitis in almost all cases, there is often no damage from the misdiagnosis if ultimately surgery is successful in taking care of the appendicitis before there is a rupture.

From the point of view of the law, medical negligence is not analytically different from negligence by a bus driver. Both a doctor and a bus driver are professionals in their fields, and both are required to adhere to certain standards of care, and are responsible under the law if they are careless and their carelessness results in injury. However, in deciding whether you should discuss your medical injury with a lawyer, it is helpful to keep in mind that you and your lawyer will be required to prove both carelessness by the health care professional who was treating you and actual damage resulting from that carelessness.