A Healthy Person Is Injured

There is not any defense when a healthy person goes to a doctor’s office or hospital and comes out injured. In a North Carolina case, a woman had a spinal tap, which consists of putting a small needle into the spinal canal to take some fluid for testing. She developed meningitis from a contaminated needle, was permanently disabled, and won a large verdict.

This can also apply to Plastic Surgery. When people have a trivial defect repaired just to improve their appearance and the result is worse than before, they usually do not have to prove malpractice. The doctor should not have attempted the surgery unless he was reasonably sure he could produce a good result. In these cases, the doctor usually has the burden of showing that he did not do anything wrong.

The Doctor Has Some Trait Or Characteristic That Sets Him Apart

The doctor you do not want to sue is the all American, pillar of the community who is widely liked and respected. Discrimination is still a fact of life and plays an important role in medical malpractice. Studies by lawyers and law professors have shown that ethnic and religious considerations are strong influences on the way a juror will vote. It is what is known as xenophobia, dislike and mistrust of people who are different. The more a doctor is unlike the rest of us, the more willing a jury is to believe that he is capable of doing something wrong. The rich doctor who drives an expensive car and acts like a snob and the foreign doctor with a thick accent, are both likely to arouse the suspicion and animosity of the jury. The doctor with a foreign accent and foreign credentials is twice as suspect.

Jurors do not like doctors who alter medical records in an attempt to deceive them or who are arrogant, dirty, or sloppy. A Florida plastic surgeon was hit with a heavy judgment when he told the jury he made a million dollars a year and was so busy he could not be bothered coming to court to testify in his own behalf.

The truth is that many great medical discoveries, such as heart transplants and penicillin, were made by foreign doctors, and some of the most outstanding American doctors have been graduates of foreign medical schools. But, the hard fact is that the doctor who has a foreign degree and looks and sounds foreign, or the doctor who acts like he thinks he is better than the rest of us, will not get much sympathy from the average American juror.

The Doctor Used You As A Guinea Pig

Juries do not like doctors who experiment on their patients. Whenever a doctor undertakes any treatment that is experimental, or has an unusually high risk, there are four things he must do:

1.) He must do a careful and thorough diagnostic work-up to be sure his patient needs it and can     withstand  it.

2.) If there are other, safer ways the condition can be treated, he must discuss them with the patient and choose the least dangerous one that will do the job.

3.) He must discuss everything fully with the patient and/or the family and let them participate in the decisions.

4.) He must warn the patient, or the family if the patient is unable to participate in the decision, of all the risks, whether or not they are serious, and he must get a special consent to treatment outlining all these points in detail. The usual hospital consent form will not do.

A Long Island woman was trapped in her car after a collision and suffered serious burns of both legs. While she was in the hospital, she developed an infection of the burned areas, and the plastic surgeon decided to give her a dangerous antibiotic, which can cause permanent deafness and kidney damage. He did not run any tests to learn whether the risk of giving the drug was necessary; he did not  discuss the risks with her or her family or have her hearing checked while she was taking the drug. After 30 days it was discovered, she was totally and permanently deaf, and she could have been treated just as well with a drug that was completely safe. She sued and won a large settlement, because the doctor had used her as a guinea pig.

Outrageous Conduct

Conduct which is far below standard, even to the layperson, will win large verdicts. Outrageous conduct can win large verdicts if it is intentional, goes beyond mere rudeness and callous bad manners, and shows a flagrant disregard for the welfare or feelings of the patient or the family.

In a Minnesota case, a mother and daughter who had been injured in an automobile accident were taken to a doctor’s office. The doctor did a superficial examination and failed to diagnose the daughter’s head injury. In offensive language, he told the mother that the daughter was faking, and he put both of them out of his office to wait for transportation in the snow and subzero weather. The daughter subsequently died of her head injury, and the mother won a large settlement with punitive damages to punish the doctor.

The Rule Is: Outrageous conduct has to be intentional, flagrant disregard for the welfare of the patient or feelings of the family, or an openly contemptuous attitude. It has to be bad enough to shock the sensibilities of the average juror. Mere bad manners and rudeness are not enough.