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Archive for June, 2009

The Doctor Goes Outside His Field or Specialty

As long as a doctor stays in the specialty or field of medicine for which he is trained and qualified, he enjoys what is known as the Presumption of Competence. In o

ther words, the law assumes that he knows his business and has done the right thing. He does not have to prove that what he did was good and accepted practice. In order to attack him, you have to show he did something wrong. He can even act as his own expert witness, though it is unlikely he will, and testify to standards of medical practice in the community where he practices and for his particular specialty.

But, when a doctor treats a patient for an ailment or does surgery which is clearly outside his field of expertise, or goes beyond what he is trained to do, it is another matter. Then, that doctor no longer enjoys a presumption of competence and has what the law calls the Burden of Proof. He must prove that he knew what he was doing and did it right.

The Doctor’s Credentials are Dubious

The American Board of Medical Specialties (ABMS) is composed of 24 Boards in various medical specialties and subspecialties, which certify doctors as qualified specialists after rigorous training and examinations, and which are universally recognized as bona fide qualifications to practice a medical specialty. For example, if a doctor applies to a hospital for privileges to do eye surgery, the first thing he is asked is whether he is certified by the American Board of Ophthalmology (eye diseases). If he is not, the hospital will not let him do eye surgery. Strange though it may seem, a state medical license is not so important. A doctor needs a license from the state to practice medicine, but he must also be certified by an official, specialty board if he wants to practice a specialty or obtain hospital privileges. An unlicensed, out-of-state doctor can be called in on a difficult case, technically as the assistant of a licensed doctor, provided he is a qualified specialist.

However, there are more than 70 “self designated” Boards that are not officially recognized, ranging from bona fide, professional organizations to one-man societies that sell diplomas for a few dollars. One thing they all have in common is that they make it easy for your attorney to attack the doctor’s qualifications and credibility in front of the jury.

There are also cultists practicing medicine, and these run the gamut from faith healers to diet doctors and holistic practitioners. Sometimes they are sitting ducks; other times they are very difficult to attack. The fact that they are not medical doctors does not always work to your advantage if one of them does something wrong. Because they are not doctors, they cannot be held to the same standards as a physician, which is another way of saying they are not responsible for their mistakes. However, they are vulnerable if they persuade someone with a treatable disease from consulting a doctor until it is too late. For example, a faith healer in Texas treated someone with diabetes, telling her she did not need any other medical treatment. Eventually, gangrene developed, and the lady lost her leg. The faith healer was held liable, because the patient acted in reliance on his assurances and did not consult a doctor until it was too late to save her leg. The First Amendment (religious freedom) did not protect him, because he had gone outside the field of spiritual counseling and was treating a physical illness.

In a New Jersey case, a podiatrist (foot doctor) was doing an operation in a hospital when the patient went into cardiac arrest and died. When the family sued, the hospital lawyers argued that it should be excused, because it had no control over what the podiatrist was doing. But, the Court said that a podiatrist could not be held responsible for the patient’s heart condition. Since the anesthetist was the only medical doctor in the room, and was a hospital employee, the hospital had to take full responsibility for the death.

Permanent Scarring or Disfigurement

You have a strong case when you can show that it caused you serious emotional suffering and has disrupted your career, marriage, social life, or love life. When a badly disfigured person goes i

nto court, everyone’s heart goes out to that person. The jurors want to give something to compensate for the happiness which has been destroyed and can never be regained.

Furthermore, most people just assume that a doctor is not going to do anything to harm his patients. When a doctor does something that harms a patient’s internal organs, like the liver or the lungs, jurors cannot see the injury and can only form an opinion by listening to the medical expert’s testimony and imagining what it must be like. But, when a doctor scars or disfigures his patient, the results are right out in the open for everyone to see, and they have a much greater emotional impact on jurors. It does not take any imagination for a juror to identify with a maimed or disfigured person. When such a person sits in full view of the jurors, their hearts go out to her or him, and they cannot help but to imagine what that person’s life must be like.

Injuries to the Heart

The heart has a special significance for everyone. It reflects our every emotion and its steady beat is the sure sign of life. Heart disease is a number one killer and almost every family has a member who has died of it or had heart surgery. Everybody knows how serious it is and how it cripples its victims. Most people have seen cardiac patients who can barely walk, wheezing, and puffing. Anything that damages the heart is like condemning someone to death, and jurors tend to feel the same way.

The Doctor Ignores Drug Warnings

As drugs become more complex and dangerous, manufacturers put out detailed information on their use, dosage, and contraindications. These are known as package inserts and are enclosed with each bottle of medicine. They tell the doctor, in great detail, just how to use the drug, when not to use it, and what to watch out for. This same information is also distributed to doctors in a book called the PDR (Physician’s Desk Reference) and is available, or on-line, at every nursing station in every hospital.

The Rule Is: There is no excuse for a doctor giving you the wrong drug or the wrong dosage of the right drug. You can sue the doctor if he does not follow the manufacturer’s instructions and you are harmed.

The pharmacist may also be liable if you are injured by an overdose or the wrong medicine. Every pharmacy is required to maintain a record of medications sold to each customer, and the pharmacist is supposed to check it each time he or she fills a prescription, just as a safety check to be sure the doctor has not made a mistake. The pharmacist knows the correct dosage for drugs and should be aware of any special problems his customer may have. If a prescription looks wrong, the pharmacist has a duty to contact the doctor and verify it. If he does not, and gives you the wrong drug or the wrong dosage, the pharmacist is as liable as the doctor.

There is one important exception to this rule. If you have a bad reaction because you have a sensitivity or are allergic to a drug or treatment, it is not the doctor’s fault, unless he knew about your allergy before prescribing the drug or treatment. The first allergic reaction is the patient’s fault. All others are the doctor’s fault, provided he knew about the first reaction.

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