Medical Negligence: It’s Never an Open and Shut Case

When a person has suffered because of an obvious error by a health care professional, the comment often said to me is, “It’s an open and shut case.” When it comes to medical negligence litigation, there is no such thing.

A medical negligence lawsuit is different from other personal injury cases in at least one critical way; the plaintiff is often already unwell before the event which prompted the lawsuit. Generally, when you see a medical professional, you are already sick or injured. A person who suffers from a botched surgery already required surgery. A person whose stroke is not diagnosed or treated right away has already had a stroke. Because of an existing medical problem, you were probably not able to function fully at work or at home.

In order to succeed in a medical negligence case, it is not enough to prove that the medical professional did something wrong. You must also prove that the wrong caused injuries and consequent losses that would not have otherwise occurred.

Consider, for example, a case of failure to diagnose cancer. The cancer is there to be seen on imaging, and should be visible, but the doctor misses it. The cancer is later found and treatment is started. Despite the obvious carelessness, the case is not straightforward. Why?

First, the doctor did not give you cancer. That means you already needed some form of treatment – surgery, chemotherapy, radiation or a combination. The likelihood is that you were going to need to take some time away from work and other activities while you underwent treatment. To succeed in a lawsuit, you must prove that the doctor missed the cancer, and that the outcome would have been different if it had not been missed (such as less invasive or shorter treatment, or prevention of metastasis).

Second, it may seem intuitive that an earlier diagnosis results in a better outcome because treatment can be started sooner. That is not always the case.

The law requires you to prove not just that you lost the chance to have earlier treatment, but that the treatment would have turned out differently than the treatment you later received.

Proving what would have happened is not easy, but it can be done. A medical negligence lawsuit requires evidence from medical experts to prove the case. Medical experts can often predict how things would have been different if the doctor or nurse had not made an error. This can be challenging. Like other professionals, doctors often have differing opinions. While you may find a doctor to say that the result would have been different, the defendant may also find someone to say the opposite.

The point of this article is not to discourage you from holding a negligent practitioner accountable. However, it is intended to help you look at your potential medical negligence case in a realistic way. It can, and likely will be, a long and arduous process. If your hope is that the medical professional will see the error and pay an early settlement, think again. The case may ultimately be open and shut, but it will take a lot of work in between.

 

Joni Dobson
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Joni became a partner at Legate & Associates in 2012 having joined the firm 6 years before. Her practice is restricted to serious personal injury disputes, with a particular focus on medical malpractice and motor vehicle collisions. She has represented injured people both at trial and on appeal. Joni believes that an injured person should have a strong advocate who will go the full distance when required to obtain fair results.