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Archive for March, 2010

The Best Judgment Rule

Another thing you may run into is the best judgment rule. This says that your doctor did not guarantee a good result. He only promised to do his best for you and cannot be faulted, if your condition did no

t respond as you had hoped or for making an honest mistake. The practice of medicine or dentistry is an art, not a science. Some diseases are so obscure it is impossible to make an accurate diagnosis. Sometimes what looks like ideal treatment produces disastrous results. But, with the sophisticated diagnostic equipment available today, doctors should not make serious mistakes in diagnosis.

For example, your doctor says, “When we got into your abdomen, you did not have a perforated stomach ulcer. It turned out to be pancreatitis, and you did not need surgery.” Can he do that and get away with it? Yes. But, not that easily. To plead an honest mistake, he has to satisfy four conditions:

1. He has to have performed a careful diagnostic work-up. The rule is that errors in diagnosis and treatment are malpractice, if based on a careless or inadequate diagnostic work-up. The doctor who performed surgery failed to do a white blood cell count or some other important diagnostic test before surgery. This

is malpractice. This is where a lot of doctors get caught. The doctor is in a hurry to get away from the office, or operating room, or to see too many patients and skips over an important test.

2. The doctor must interpret the test data correctly. You are going to have exploratory abdominal surgery but might be pregnant. The surgeon orders a pregnancy test but goes ahead without learning the result of the test. You later learn the pregnancy test was positive, and he operated on a pregnant uterus and you lost the baby. Is he liable? Yes. The doctor has to have made a diligent attempt to put the big picture together from all the test data before making his decision.

3. There must be a legitimate choice between different and competing techniques. The doctor has to be able to produce a textbook or authoritative medical article that says you can do it either way, and he chose one that turned out to be wrong.

4. The choice has to be one that a respectable minority of doctors would have made.

If the doctor says he used his best judgment, he has to have met these four conditions to justify a bad result and not be guilty of malpractice. He is admitting that he made a mistake and is offering the excuse that he committed a justifiable error of judgment. In order to do so, he has the burden of showing that his error was truly justifiable and not due to negligent behavior on his part.

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The Respectable Minority Rule

You are sitting outside the treatment room of a hospital when you hear one nurse say to another, “Dr. Jones is butchering that poor patient!” The patient is your mother. Or, you have a broken leg se

t by one doctor and go to another doctor to have the cast removed. He says something like, “Who did this? I certainly would not have done it this way!” Your leg still hurts, and you do not like the look of it. Or, your friend tells you that you could have been treated painlessly with an inexpensive medicine, after you have had expensive and painful surgery.

Right away you think the doctor committed medical malpractice and maybe he did. A lot of malpractice only comes to light by listening to unguarded comments and hospital gossip. But, do not be too quick. Maybe the nurse does not know what she is talking about when she criticizes the doctor’s treatment of your relative. Maybe the technique for setting the broken leg is highly regarded by 30% of doctors. Maybe the surgery saved your life, and medicine would have killed you. The practice of medicine is not a popularity contest. The U.S. Supreme Court once ruled that if 51% of the doctors in the U.S. do one type of treatment, it does not mean that the other 49% are guilty of malpractice. If the doctor can show that his ideas are those of a respectable minority, he is okay.

What is a respectable minority? It can be a certain percentage of doctors or members of the same specialty, such as 30% of all family practitioners, or 30% of neurosurgeons treating a rare disease, or it can be a few eminent doctors.

Do not go off half-cocked, because a doctor or a nurse does not agree with what your doctor did. Almost 40% of medical malpractice lawsuits and dental malpractice lawsuits are set off by a nurse or a doctor bad-mouthing another doctor. The criticism may be an honest difference of opinion or just envy. Before you spend time and money on a lawsuit, be sure there really was malpractice.

     
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