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Rules in Medical and Dental Malpractice

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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