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Posts Tagged ‘cerebral palsy’

Obviously, the old But For Rule that was discussed earlier was unfair, so about 75 years ago, a legal theory called the Substantial Factor Test was introduced. This says you do not have to rule out other possible

causes of your injury. If you can show the doctor’s conduct was the probable cause of what happened, or was a substantial factor in contributing to the bad result, you have a case.

The Rule Is: If the doctor’s actions made a good result less likely, or a bad result more likely, he is responsible for the final results, especially if you can show that, if it had not been for the doctor’s negligence, the chances of a different outcome were better than 50%. The Substantial Factor Theory is also referred to as the Loss-of-Chance Theory, because it holds that anyone who deprived you of the chance of a cure or a happy life is liable. You do not have to rule out other possible causes of your bad results, as long as you can show there was a chance of a better result, and that chance was destroyed by someone’s malpractice. If the doctor’s actions made a bad result more likely, or a good result less likely, you have a valid complaint.

You can see that the Substantial Factor Theory or Loss-of-Chance Theory evens the odds and keeps the doctor honest. If he wants to claim that your infant’s cerebral palsy was due to a virus, and not to a birth injury, he has to produce evidence to prove that it was a virus; you do not have to prove that it was not a virus. The doctor cannot give you the impossible job of trying to “prove a negative.”

This prevents the doctor from raising a smoke screen of conjectures about other possible causes of your injuries. In a North Carolina case, the court said, “When a defendant’s negligence has effectively terminated a person’s chance for survival, it does not lie in the mouth of the defendant to raise conjecture as to the chances he put beyond the possibility of realization. If there was any substantial possibility of survival, and the defendant destroyed it, he is answerable.” No matter what some people may say, our system of justice is based upon the notion of fair play.

You do not have to prove your medical malpractice case 100%, or beyond a reasonable doubt, as in a criminal case. You do not have to rule out the possibility that the doctor’s conduct was not the cause. All you have to do is produce evidence from which the average juror may conclude that you were probably the victim of medical malpractice or dental malpractice.

Instead of you having to show that the doctor was entirely responsible, he has to show that he had no part in causing the bad result. He cannot hide behind conjecture and has to come forward with evidence to show that he was not even partly responsible. As a New York court put it, “One who has negligently forwarded a diseased condition and thereby hastened and prematurely caused death, cannot escape responsibility, even though the disease would probably have resulted in death at a later time. The probability of death from existing causes, for which the defendant was not responsible, would be important in fixing damages – but not a defense.”

How about the hypothetical cases listed in our previous post? The widow of the heart attack victim can certainly sue on the grounds that her husband’s chances of survival would have been much better, if he had been in the cardiac care unit (CCU) of the hospital. Failure to give him proper care reduced his chances of survival. The patient, who developed a wound infection and meningitis, can say that the infection of a clean wound was due to a break in good sterile technique. There was not any infection before the doctors cut on him, so someone must have contaminated the wound during or after surgery. If

everything had been done right and according to the book, no germs would have gotten into the wound, and there would not have been an infection.

Postoperative infection of a clean wound is a question defense lawyers do not have any answer for. They cite all kinds of medical articles, like the booklet we talked about earlier that says a certain percentage of wounds become infected. But, none of them can explain how it happens without someone breaking sterile technique and contaminating the wound. Over 100 years ago, Louis Pasteur, the great French bacteriologist, proved that germs can only be produced by other germs, and infection cannot occur in a sterile space without outside contamination. Yet, we still hear defense lawyers stating theories about how wound infections just happen without any contamination at all.

The parents of a brain damaged baby can make a claim because good and careful doctors take care not to injure the baby’s head, and it was more likely than not that the injury was due to improper delivery technique, or to the baby having been dropped. Other conditions may have played a role. No one can say for certain. But, the head injury was certainly a substantial, if not the only cause, in producing the brain damage.

There is no doubt that early diagnosis and surgery of the breast cancer would have greatly improved the patient’s chances for survival. Failure to do adequate testing, such as mammography, and to remove the cancer while it was still small and curable was a substantial factor in the final outcome and greatly reduced her chances of a cure.

A New Jersey gynecologist treated a lump in a patient’s breast for two years but failed to do any of the routine tests that would have diagnosed her cancer. She subsequently went to another doctor who removed the breast. When she sued, the gynecologist said that she had not suffered any damages. The tumor had apparently been completely removed by the other doctor; there were no signs of recurrence, and she would have had to have the surgery anyway. He maintained that, even if he had diagnosed it two years earlier, she would have had the same surgery and gotten the same result. Do you agree with that defense?

The case was appealed to the New Jersey Supreme Court, which said the gynecologist was guilty of malpractice and had to pay damages, because his negligence had decreased the chances of a successful cure, and his patient had suffered emotionally from the fear that her cancer might have spread and become incurable. The important thing is she did not have to show that the cancer actually had become inoperable or had spread or returned. Just the increased chance of a bad result, and her emotional suffering entitled her to an award.

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.

Brain Damaged Infants

Everyone sympathizes with injured children and the financial problems of parents who must care for them. It is usually difficult for the doctor to show he did not injure the child. So many things can go wro

ng during pregnancy and delivery, and newborn infants are easily damaged. That is harsh, and infants are born with birth defects from natural causes that have nothing to do with the delivery or the care in the nursery. But, the birth defects that are due to other causes are of different types. When a newborn infant or small child is found to be suffering from a brain hemorrhage, hypoxia (lack of oxygen) to the brain, cerebral palsy, or injuries to the nerve trunks to the arm, the cause is probably a birth injury that could have been avoided.

In a Texas case, a newborn infant suffered a brain hemorrhage which resulted in severe, permanent impairment. The delivery was normal and the APGARs (tests performed by the doctor or nurse right after an infant is born to determine how healthy it is) were normal when it was born. No one could explain it. It was passed off as “one of those accidents that happen.” Then, about three years later, a nurse let it slip that she had dropped the infant on the floor while bathing it. There was no one around, so she put it back in the crib and said nothing. Luckily, the person she talked to was a friend of the child’s mother and relayed the story. When questioned under oath, the nurse admitted the accident, and the child’s parents brought a successful lawsuit against the hospital, which was responsible for the nurse’s actions.

The Rule Is: A brain damaged infant, or child with cerebral palsy, is due to some error or malpractice until proven otherwise.

Another powerful factor in your favor is that the jury wants to help the victims of this tragedy, no matter who was or was not at fault. Society wants to help the victims of this tragedy. There are limited public funds available, and the only way to do so is out of the doctor’s malpractice insurance. It is what is called loss allocation. Like workman’s compensation, it is a legal theory that allows juries to help people who have been severely injured through no fault of their own, without having to decide whether the doctor did something bad or just made an honest error that caused the injury.

Patient Permanently Disabled or in a Coma

When a patient is left permanently disabled and can no longer care for himself or herself, the costs of medical care become astronomical. Juries tend to be sympathetic, if not to the comatose patient, then to the family facing huge medical costs.

In these cases, the jury wants to help out, and the only money available is the doctor’s insurance policy. Public funds or assistance are inadequate. So, juries will bend over backward to find an excuse to give a helping hand. They see their social responsibility as helping the person who has been severely injured, and the family burdened with crushing expenses, rather than trying to split hairs in deciding whether or not the doctor made an error or a cold, impartial balancing of the scales of justice. They believe the easiest way to help with the problem is to have the doctor’s insurance company pick up the expense.

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