The A,B,C’s of Medical Malpractice
Most people hear the term “medical malpractice” and think of a doctor doing something wrong to a patient that could have been avoided. Even many lawyers who do not handle medical malpractice cases hold to this understanding. However, this notion, although loosely accurate, does not explain what really goes into a medical malpractice lawsuit. To understand some of the complexities, I like to use the following equation:
A + B = C
C is an actual lawsuit in which an injured patient claims wrongdoing by the doctor. So how do medical malpractice lawyers ultimately get to C? Well, the first step is A. A is negligence – the doctor does something that she should not have done, or the reverse, fails to do something that should have been done. Most people understand this concept but are quick to think that if there is A alone, then we have C (the lawsuit).
But what about B? Remember, it is A (negligence) and B that is needed for there to be a lawsuit. B stands for causation and damages. So now the equation translates to the following: for a doctor to be sued in court for medical malpractice, the doctor must have treated negligently and that negligence caused actual harm to the patient. Sounds simple, yes? Yes if the case has, for example, a surgeon performing an amputation on the wrong, healthy leg of a patient. In that case, we have A and B. The surgeon was negligent for performing surgery on the wrong leg and certainly the negligence caused harm – the loss of the patient’s good leg. Thus a lawsuit (C) ensues.
But let’s change the facts a bit. Suppose a patient gets a CT scan of the lungs and a small nodule is found suspicious for lung cancer. The doctor reviews the report but does nothing – no follow up or biopsy. Three months go by and the patient has another lung CT scan which shows the nodule growing. This time, however, the doctor sees the report and has the patient undergo testing to confirm the malignancy. Does the patient have C, or a lawsuit?
Let’s use the equation. Is there A? Well certainly, the doctor has a duty to read the first report and act on it. That failure fits the definition of negligence. But do we have B? The answer to that question rests in the answer to another question: Did the three month delay in treatment make any difference to either the outcome or treatment plan for the patient? If the size of the tumor under both CT scans demonstrate the tumor to be at Stage 1, then we do not have B. A Stage 1 lung cancer at the first CT scan which remains Stage 1 three months later would not change the treatment for the patient and would not change the patient’s chances of success or survivability rate. So under this scenario, the patient should not be able to file a meritorious lawsuit because the delay of three months causing a change to the patient’s ultimate outcome cannot be proven.
But what if the Stage 1 tumor three months later is now a Stage III or IV tumor? A lung cancer patient’s treatment and chance of survival radically changes from Stage I to either Stage III or IV. Now, there is greater likelihood the patient can establish B – that the three month delay caused a worse outcome for the patient.
I hope that this short primer on the A,B,C’s of medical malpractice has provided more insight as to how medical malpractice lawyers investigate and examine cases worthy of a lawsuit to be filed in court.
June 22, 2018
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