Archive for October, 2010
Let’s say you have a condition that has not bothered you for a long time but flares up due to malpractice. For example, you have an old back injury, which has finally quieted down after giving you trouble for many years. While you are in the hos
pital for another condition, you are allowed to fall off an examining table. Subsequently, your back condition flares up again. Can the hospital claim that it was not responsible, because you already had a bad back? The answer is no. There is an old legal rule that the wrongdoer takes his victim as he finds him.
Imagine that somebody hits you lightly on the head, just a bump that would not injure a normal person. But, you have a hole in your skull from an old injury and suffer a serious brain injury with permanent disability. Can your attacker get away with it by pleading that he did not know you were abnormal and that what he did would not have hurt a normal person? No, he cannot. There actually was such a case, and it gave rise to the legal theory know as the Thin-Skulled Plaintiff.
Anything that causes a quiescent condition to flare up, or a chronic condition to become worse, is considered exactly the same as an original injury. The fact that the doctor did not know does not excuse him.
It is important for you to realize that this applies only to medical malpractice and dental malpractice. If a doctor gives you some treatment, which causes you to have a bad reaction, without committing any malpractice, he is not to blame unless he knew beforehand you were likely to have the reaction. For example, if a doctor gives you penicillin, and you have an allergic reaction, that is your fault. If he gives you penicillin when he knows, or should have known, you are allergic, that is his fault.
You can set down three rules for a flare up of a preexisting condition or an unusual reaction:
1. If it is because of medical malpractice or dental malpractice, the doctor is responsible.
2. If there is no malpractice, and the doctor did not know about your particular problem, he is not liable.
3. If there is no malpractice, but the doctor knew, or should have known, about your special condition and did something that caused it to flare up or become worse, he is liable.