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Archive for August, 2010

If you are going to file a medical malpractice lawsuit or a dental malpractice lawsuit, you have to show that you were injured.  Otherwise, the court cannot give you anything, no matter what the doctor did to you.  The question is whether you

have to prove that what happened was the doctor’s fault, beyond a reasonable doubt, and rule out all other possibilities.

Let us assume you

had a baby in a hospital and the infant suffered a subdural (brain) hemorrhage.  The hemorrhage clears up, but as your child grows, he or she develops cerebral palsy, which you learn may have been due to rough handling and improper use of obstetrical forceps during delivery.  You have reason to believe the same injuries that caused the subdural hemorrhage also caused your child’s cerebral palsy.  When you file your lawsuit, the doctors and the hospital admit that it was a difficult delivery, and the baby’s head was damaged.  But, they also say that cerebral palsy has many causes, and challenge you to rule out other possible diseases or injuries.  That would be almost impossible.  How would you deal with it?

Or, your husband has severe chest pain and goes to the hospital where they do not take an ECG (electrocardiogram), or any lab tests, and send him home with medications.  He later dies of a heart attack.  The hospital says, “It was a massive heart attack, and he probably would have died anyway, even if he had been in the ICU (intensive care unit).”  How do you answer that?

Or, you had a spinal operation for a bad back.  Afterward, you developed a wound infection and meningitis, which left you paralyzed and brain damaged.  When asked how this could happen in a modern hospital, under sterile techniques and infection control, the doctor showed your family a booklet published by the American College of Surgeons, stating that 7% of surgical wounds become infected.  The booklet attributes the infections to contamination by the patient’s own germs and does not mention medical malpractice as a possible cause.  He told the family that it was just your bad luck to be one of the 7%, and your infection was not anyone’s fault.  You probably brought the germ into the hospital with you.  True or false?

A woman goes to a doctor’s office several times over a period of months, complaining of a lump in her breast.  The doctor does not do any diagnostic tests and tells her not to worry.  Two years later, she goes to another doctor who discovers she has breast cancer, and it is inoperable.  Cancer is an insidious disease, and no one can say for sure that it will not spread, even if treated aggressively in its very earliest stages.  So, the doctor says, “How can you prove that she could have been cured two years ago?”  You can’t.  Not even the best cancer specialist can.  You can give statistics and percentages, but no one can say for sure that that particular case could have been cured.  So, what do you do?

Are these explanations valid defenses?  Do they destroy your case?  Do you have to show beyond a reasonable doubt that the doctor’s malpractice was the only cause of your injuries?

The Old “But For” Rule

In the past, medical malpractice cases and dental malpractice cases came under what lawyers call the But For Rule, which said the doctor was only liable if the bad result would not have occurred, but for his negligence.  In simple terms, that meant the plaintiff had to rule out all other possible causes of the injury and show the bad result was 100% the doctor’s fault.  That was often impossible, except for the most flagrant malpractice.  In all the cases listed above, it would have been easy for the doctor to slip off the hook, by raising doubts and questions and demanding that the patient perform the impossible task of disproving all other possible causes.

Medicine and Dentistry are complex, and it is not often that you can nail anything down with 100% certainty or say that any single thing caused a good or bad result, especially with modern medicine and dentistry where different doctors and hospital personnel may be giving a patient several different treatments at the same time.  Who is to say just who was responsible for what?  Under that doctrine, all a doctor had to do was raise doubts and claim that some other person was partly responsible for the bad result, or that some other disease might have caused the injury, or that the outcome might have been the same, even if he had not committed malpractice and had done everything right, and he was home free.

We will discuss the new Substantial Factor Test in our next blog post.

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To show that a doctor committed fraud or deceit, whether in giving you advice, altering clinical records, or helping you with a case, you have to show the following:

1. The doctor knew, or should reasonably have known, the information was false or the records were altered.

2. The doctor intended that you rely on it, and you believed it was true.

3. You based your decision or action on the belief that it was true.

4. You suffered an injury or financial loss because of your reliance on the doctor’s misrepresentation. For example, you consented to surgery or delayed filing a malpractice suit until after the time limit ran out.

Destruction of evidence is a crime and so is tampering with a witness. And, you are now asking yourself why a doctor who alters clinical records, or threatens your expert witness with political reprisals if he testifies for you, cannot be fined or sent to jail. The answer is that he can. And, anybody else who tried it would probably be punished with a fine or jail sentence. But, doctors seem to get preferential treatment from the courts. Although altering clinical records and intimidation of medical expert witnesses or dental expert witnesses happens every day, it would be hard to find any instance of a doctor ever having been punished for doing them.

In a West Virginia case, the doctor called the patient’s expert witness and made threats against his life, if he testified against him. When the patient’s lawyer complained to the court, the judge had a chat with the doctor who explained that what he really meant was the expert would “get killed” by being embarrassed and humiliated on the witness stand. The judge agreed with him. End of complaint.

What about the doctor who offers to help you, then

deliberately destroys your case? You can also recover from him, and this will be dealt with later.

To show fraud in obtaining your consent, or in concealing the effects of medical malpractice or dental malpractice, you must have some proof, either statements made in the presence of a reliable witness or a promise in writing. If it is just your word against the doctor’s word, it tends to turn into a “shouting match”, which the doctor usually wins.

Fraudulent alteration of clinical records can be established by a medical expert or dental expert or by an authenticator of disputed documents (handwriting expert). In the New Jersey case mentioned earlier involving the neurosurgeons, the medical expert witness for the patient spotted the typist’s notations that the documents had been dictated a year later and must have replaced the originals, which had been destroyed. In a Long Island case, the plaintiff was able to prove the doctor had altered the medical records to cover his malpractice and deceive the court. The jury awarded punitive damages, in addition to compensatory damages.

Punitive damages are not covered by the doctor’s malpractice insurance. Therefore, if you discover your expert has conspired against you, or the records have been altered or destroyed with intent to deceive, it gives your lawyer leverage.

The Rule Is: In order to plead fraud or deceit, you must show there was a conspiracy between the doctors or the clinical records were deliberately altered with the intention of defeating your case. Just because the doctors know each other, or are friends and have discussed your case, or because records are lost or edited in preparation for trial, will not do it. You must show deliberate intent to deceive you.

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