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Archive for April, 2010

Were You Partly to Blame?

A doctor gives you a prescription for medication, or tells you that you need emergency surgery, and you do not follow through and ignore his advice.  You are in a hospital and decide that you want

to go home.  The doctors tell you that you are in no condition to leave, but you sign yourself out and go home anyway.  You secretly take your own sleeping pills to the hospital, in violation of the hospital rules.  Are you responsible if something bad happens?  Yes.  You cannot hold a doctor responsible for the results of your willful disregard of his advice.

It is known as Contributory Negligence in some states and Comparative Negligence in other states.  There are important differences in the two concepts and the effects they can have on a medical malpractice case or a dental malpractice case.  Check which concept applies in your state.  You could have a valid case in one state and a meritless case in another state.

If your doctor advises you to have treatment and you refuse and something goes wrong, or if you sign yourself out of the hospital against the advice of the doctors.  In a contributory negligence state, it will probably prevent you from collecting a judgment. 

In a comparative negligence state, it will reduce the amount of your award.

Sometimes a patient who is drugged, mentally disturbed, confused, or senile will do something against a doctor's order, and something bad will happen.  The defense attorneys will claim there was contributory negligence, but that argument will not stand up.  It has to be a deliberate and conscious act by someone who knows what they are doing.

In a Maryland case, a confused, senile elderly lady climbed over the bedrails and walked as far as the bathroom before she passed out.  As she fell, she grabbed a hot water pipe with both hands.  By the time she was found, her hands were so badly burned by holding the hot pipe that they had to be amputated.  The defense lawyers claimed contributory negligence, but the court said no, because she did not do it deliberately.

It is not enough for a doctor to say that you left the hospital against his advice, or agreed to a risky treatment.  He has to either show you agreed in writing or he has to produce a reliable witness.  It is up to the defendants to prove you were guilty of contributory negligence or that you knowingly assumed an unusual risk.  You do not have to prove that you did not.

THE RULE IS: Your actions must have been willful and deliberate, have occurred at the same time as the medical malpractice or dental malpractice, and have contributed to the bad results.


A doctor's duty to make a correct diagnosis requires him to inform himself by ordering the necessary tests, interpreting the test results correctly, and arriving at a logical conclusion by putting all the pieces of the diagnostic picture in their pro

per places and perspectives. With the sophisticated diagnostic tools today, a wrong diagnosis is more often the result of negligent or careless diagnostic work-up than lack of medical knowledge. It is often impossible to make a precise diagnosis, but there is rarely an excuse for making a wrong diagnosis. The following are some of the most common negligent errors:

1. Failure to do all routine screening tests indicated by the patient's history or physical findings.

2. Ignoring test results which do not fit in with the doctor's preconceived idea of what is wrong with the patient, especially when those results are positive.

3. Failure to repeat laboratory tests periodically or if the patient's condition does not respond as expected.

4. Attributing the patient's illness to a previous disease without checking to learn whether or not a new condition has developed.

5. Reliance on negative laboratory results, which do not square with other test results or the patient's general condition, especially if the patient's condition continues to decline.

6. Failure to repeat physical examinations and laboratory tests at frequent intervals during the course of a long illness.

In a Florida case, a 50 year-old man, with a history of smoking, went to a doctor complaining of wheezing and pain in the c

hest, a clinical picture suggestive of lung cancer. Even though the doctor was a specialist in Internal Medicine, he treated the patient and failed to take a chest x-ray for almost a year. When another doctor finally ordered a chest x-ray, the man's lung cancer was inoperable.

In a Georgia case, an elderly man in a nursing home complained of passing blood in his urine. This is a cardinal sign of cancer of the urinary tract and demands an immediate and complete work-up to identify the cause. However, the nursing home doctor did nothing about it for over a year, even though the bleeding was repeatedly noted in his chart, and the nursing home staff did nothing to notify the man's family or any other doctor. When his family finally found out and took him to a urologist, he was found to have terminal kidney cancer and died within a few weeks.

Now that you know what constitutes medical malpractice or dental malpractice, you can decide whether your doctor actually committed a departure from good and accepted practice that caused your bad results and is grounds for a malpractice lawsuit. Do not think about the words malpractice or negligence, which carry a moral implication of wrongdoing. Think about a departure from good and accepted practice. Did the doctor or the hospital employee do something that was not in keeping with accepted practices by good doctors? Did he make a serious mistake that a good and careful doctor should not have made?

The Rule Is: A valid medical malpractice case or dental malpractice case should be based upon a showing that the doctor did something that a good and careful doctor, in the same or similar situation, under the same or similar circumstances, would not have done.


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