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The courts in each state decide how much probability you have to show in order for the judge to let the jury decide your medical malpractice or dental malpractice case. In some states, you have to show that it was more likely than not (better than a 50% chance) that you would have gotten a different result. Other states only require you to show the malpractice was a substantial factor in producing the bad result and leave it up to the judge to decide what a substantial factor is in each case. In some states, you only have to show there was a remote possibility of a better result in order to get to the jury. A Texas lady won a case when she showed that she suffered anxiety because of a remote possibility of cancer resulting from a burn, and a Virginia man won a verdict for failure to diagnose his cancer of the esophagus, even though his chance of survival with the best treatment was only 9%.

The Rule Is: Your medical expert witness or dental expert witness should be able to testify that it is more likely than not (better than 50%)  you would have received a better result, if you had not been the victim of malpractice. But, the Loss-of-Chance Theory only applies to the effects of malpractice and does not relieve you of the obligation of showing that the doctor committed a departure from good and accepted practice.

How Does This Affect Your Award?

While the possibility

that your injury was due to other factors probably cannot be used as a defense by the doctor, it can be used in determining the amount of your award. For example, if the Virginia jury had decided the patient with cancer of the esophagus should get $100,000.00, the award would have been reduced to 9% or $9,000.00. If the court had decided the lady with breast cancer had only a 50% chance of success with early treatment, she would have received 50% of the award. Theoretically, the court will adjust the amount of the award in proportion to the probable effect of the malpractice on your injury.

In real life, it is rare for a jury to reduce the amount of its award much if the doctor was only 50% or 60% liable. As already explained, many courts and jurors see malpractice awards as Loss Allocation, which is another way of saying that they use whatever funds  available to help people, who have been injured or suffered a serious loss through a physician’s or a dentist’s carelessness or neglect.

Fraud and deceit usually occur in one of the following forms:

1. Assuring the patient that a diagnosis known to be wrong is correct.

2. Deliberately making a false prognosis as to the risks or outcome of treatment, especially if it is t

o persuade you to submit to surgery, treatment, or expense you would not have had otherwise.

3. Falsely representing what happened while the patient was unconscious or under anesthesia.

4. Falsely representing what was done during surgery and what organs or tissues were removed.

5. Pretending to have skills or training which he does not have.

6. Concealing vital information or a material fact, such as having left a sponge, instrument, etc. inside a patient.

7. Conspiring with another doctor, or any other person, to mislead or deceive you.

Effects of Fraud and Deceit by Physicians and Dentists

Earlier it was stated that a medical malpractice case or a dental malpractice case is not a criminal case, and the court is not going to punish the doctor beyond making him pay for your losses and pain and suffering.  All you can hope to be awarded is what is known as compensatory damages.  That means compensation for the following damages:

1. Your medical and other expenses.

2. Loss of income or the support you would have received from the person who was disabled or died.

3. Pain and suffering, including emotional suffering.

However, if a doctor is guilty of fraud and deceit to induce you to undergo treatment or conceal malpractice, or if he alters or destroys medical or dental records and you discover it, it can strengthen your case in the following ways:

First, jurors do not like doctors, who do these things and will likely award damages.

Second, the judge or jury can award punitive damages, which are in addition to your compensatory damages and are designed to punish the doctor.  They are like a fine, not just to compensate the injured person, but to teach the wrongdoer a lesson.  They are actually a fine, but not like a criminal fine, because the money does not go to the court.  The money from punitive damages goes to the victim.

Third, if a doctor uses fraud or deceit to obtain your consent to treatment or a surgical procedure, the consent is null and void.

Fourth, if the doctor conceals his malpractice after the treatment, it tolls the statute (stops the

clock) on the time limit for you to file your case until you find out about the doctor’s fraud.  But, it has to be active concealment, such as lying to you.  If the doctor failed to tell you there was malpractice that does not count.  The United States Constitution says he does not have to incriminate himself or testify against himself.

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l” style=”text-align: justify;”>Fraud and deceit by physicians and dentists are serious words. They mean the doctor either defrauded you or deliberately deceived you. There are usually four ways in which a doctor can be guilty of these unethical actions.

First, the doctor intentionally misleads you as to the nature

of your condition and what the treatment involves.

A North Carolina surgeon told a patient that a heart operation held no risk. The patient was not yet 40 years old, the operation was not really necessary, and he could have lived for many years without it. But, since the doctor had assured him there was not any risk, he decided to go ahead with it, just to be on the safe side. After the operation, the patient developed an air bubble to the brain and died.

Postoperatively, the patient’s family found out the operation was considered dangerous by heart surgeon, and as many as 10% of the people who have it die. Even though the doctor had performed the operation correctly and had not committed malpractice, he had willfully concealed the dangers of the operation to get the patient to agree to the surgery. The family sued, charging that the doctor had deliberately deceived the patient about the risks, and he did it for the money. The jury thought so, too.

Second, the doctor intentionally misleads you as to what went wrong with a treatment and gives you a false story to keep you from suing him, until the statute of limitations (time limit) runs out.

Third, the doctor alters or destroys his office records, or the hospital records, in order to conceal the truth from your lawyer and the jury. This is known as spoliation of evidence and is the most serious of all.

In a New York case, a woman was sent home from the hospital with pneumonia and she died. When the family’s lawyer obtained the hospital chart, all the reports of laboratory tests were normal. Since that did not square with the patient’s condition, the lawyer obtained a court order to see the original records in the hospital laboratory. It turned out that when the doctor was notified he was being sued for medical malpractice, he went to the hospital and removed the original laboratory report slips that showed his patient had a raging infection. He substituted forged reports that showed a normal white blood count when he sent her home. When that was brought out at trial, the jury not only gave the victim’s family an award for compensatory damages but added an amount for punitive damages, to punish the doctor for attempting to deceive the court.

Since reports of surgical operations and discharge summaries are very important, most hospitals require doctors to dictate the report of an operation before he leaves the surgical suite and the discharge summary within 48 hours after his patient is discharged from the hospital. The dates these reports are dictated and transcribed are indicated by a notation in the lower, left corner that read like this: D: 01/22/09, T: 01/24/09.

In a New Jersey case, a team of neurosurgeons botched a major brain operation, and the patient died. When the patient’s family filed a lawsuit for medical malpractice, and their lawyer obtained the medical records from the hospital, he discovered the report of the operation and the discharge summary had been dictated and typed a year after the patient died and two months after the lawsuit had been filed. Under hospital policy, the doctors would have been suspended and would not have been able to admit patients to the hospital, if the chart had not been completed. But, they had been admitting patients all along, since the patient died, so it was obvious they had destroyed their original reports and substituted falsified reports. The secretary was honest and noted the correct dates she typed the revisions and exposed the doctors’ scheme to deceive the court. The patient’s family won at trial.

Not all cases of alteration of medical records and spoliation of evidence are as easily detected as in this New Jersey case. Sometimes it requires an Authenticator of Disputed Documents (handwriting expert) to prove it to the satisfaction of the court. In a Virginia case, the authenticator found that the doctor had used a pen that was not even manufacturer until after the dates on his handwritten note. If you can show medical records have been altered or destroyed, it puts you in a strong position.

Fourth, a doctor offers to help you with your medical malpractice case or dental malpractice case or promises to be your expert witness. At the last minute, he fails to appear to testify or changes his opinion on the witness stand.

A Utah lawyer was suing an anesthesiologist for medical malpractice, which resulted in the death of a patient during surgery. The surgeon, who had performed the operation was critical of the anesthesiologist and offered to act as the lawyer’s medical expert witness. The lawyer did not bother to look for another expert or obtain any other opinion. The surgeon was also helpful in preparing an airtight case against the anesthesiologist, and there was never any question that the surgeon was responsible, too.

Three weeks before the case was due to go to trial, the surgeon announced that he would not be able to act as the expert witness “for personal reasons.” When the lawyer went to an independent expert, who was located in another city, he was astonished to learn that the surgeon, who had been so helpful, was the one who had committed malpractice and should have been sued. The lawyer did not have a case at all against the anesthesiologist. The surgeon had led the lawyer along until it was too late to sue him. When confronted, the surgeon admitted he never had any intention of testifying. It was too late to find a substitute expert, and the case was lost.

Assumption of the Risk is a legal term that means you knowingly assumed responsibility for what happened, because you agreed to take an unnecessary risk. Your doctor tells you that you can have an operation that will cure you right

away, but it is risky and has a 50% chance of a bad result. He explains the safe alternative is a long course of medical treatment. You want to get it over with and decide to go ahead anyway. You have assumed the risk and cannot hold the doctor responsible for what goes wrong.

You have been in a hospital with pneumonia and are feeling a lot better. The doctor tells you that you are not out of the woods and should remain in the hospital. If you go home, you could suffer a relapse or serious complications. But, you have urgent business and sign yourself out of the hospital against the doctor’s advice. You have assumed the risk, and if something goes wrong, you are solely to blame.

It is another way of stating that you have released the doctor from responsibility for the outcome of his treatment. You knew what you were doing and took your chances with your eyes wide open. This defense is usually trotted out when the doctor has done something unusually risky, and it has turned out badly. He says, “I explained all the risks to my patient, but she decided to go ahead anyway.”

Does it relieve the doctor of all responsibility? No. It does not excuse medical malpractice or dental malpractice and only excuses the doctor when he can show that your bad result was due to risks inherent in the treatment or arising out of your own actions, like not following his orders. If he warns you the treatment he is going to give you is risky and also commits malpractice, he cannot blame you for the bad result.

Why not? Because you cannot consent to a wrongful act. No matter what you agreed to, or how flagrantly you disregarded your doctor’s advice, if your injuries were due to his malpractice, he cannot lay the blame on you. It is not enough for the doctor just to tell you that something is risky. He also has to explain precisely what the risks and dangers are. He has to tell you about all the common risks, even if they are not serious, and about the uncommon risks if they have serious consequences.

It is not enough for the doctor to say you assumed the risk. He has to offer some proof that you consciously took the additional risks, such as a reliable witness or a written consent. This is because the courts assume you are what lawyers call the Reasonable Person, someone who would not take unreasonable risks or do foolish things. If the doctor wants to justify himself by saying you took an unnecessary risk, then he has the burden of coming forward with evidence to show that you did. You do not have to show that you did not.

What if the doctor says, “Everybody knows brain surgery is dangerous. The patient should have asked me about the risks. If he did not bother to or care enough to ask, then he was careless and assumed the risk.” How do you answer that? The same rule we just explained also applies here.

The Rule Is: A patient cannot be criticized for placing complete trust and confidence in the doctor. The doctor is the expert, who knows what the risks and dangers are. He has to offer the warnings, you do not have to ask.

An Illinois man went to a hospital ER after being hit in the head with a bottle during a bar fight. He was belligerent, staggering, confused, and had slurred speech. The doctors thought he was drunk and did not pay much attention to him. They a

llowed him to sign himself out against their advice. He went home; his family put him to bed to sleep it off. In the morning, they could not wake him. He was rushed back to the hospital where it was found that he had been suffering from a skull fracture and brain injury and was not drunk at all. He could have been saved when he first went to the ER, but by the time he returned to the ER, the pressure on his brain had caused an irreversible coma and he died.

His family sued the hospital, claiming he should never have been allowed to leave the hospital without a thorough work-up, which would have revealed the head injury and allowed surgeons to save his life. The hospital claimed contributory negligence, because the patient had signed himself out of the hospital against medical advice. The court said his action was not negligent, because it was not willful. In his confused mental state from the brain injury, he did not realize what he was doing.

A Florida man suffered a broken leg in a motorcycle accident. It was set incorrectly in the hospital. He ended up permanently lame due to a crooked leg. When he sued, the doctor moved to have the lawsuit dismissed because of contributory negligence. The doctor claimed the bad result of his treatment had been made worse, because the patient had been too active while still in the cast. The Florida court refused to dismiss the case, because the contributory negligence had occurred long after the doctor's malpr

actice in setting the leg. However, it did reduce the amount of the jury award, because the man had actually tried to play football, and his activity made the results of the doctor's malpractice much worse.

It is not contributory negligence, if you dismiss a doctor who has lost your confidence. You certainly do not have to continue following the advice of a doctor, if you think he is not handling your case right. If that happens, and you are not in a hospital, you simply go to another doctor. If you are in a hospital, you should ask your doctor to call in a qualified consultant. If your doctor refuses to call in another doctor, ask the hospital administrator to intervene. If he refuses, call your lawyer. You are always entitled to a substitution of doctors, if a qualified substitute is available.

The Effects of Contributory Negligence on Your Case

Contributory negligence can have two effects on a medical malpractice lawsuit or dental malpractice lawsuit. First, if the defense lawyers can show that your willful conduct seriously influenced the outcome, they can ask the judge to dismiss your complaint. Second, they can use it to persuade the jury to rule for the defendant. If the jury decides your actions were 50%, or more responsible, it will probably award you nothing.

An Indiana man suffered severe chest pains while playing tennis. He went to a hospital ER where an ECG (electrocardiogram) showed signs of an early heart attack. Hospital admission was advised but he refused and left the hospital against medical advice. Later that day, he resumed playing tennis and dropped dead on the court. The widow's malpractice suit against the hospital for failure to use more vigorous persuasion was dismissed, because of her husband's contributory negligence in ignoring the advice of the ER doctor.


Were You Partly to Blame?

A doctor gives you a prescription for medication, or tells you that you need emergency surgery, and you do not follow through and ignore his advice.  You are in a hospital and decide that you want

to go home.  The doctors tell you that you are in no condition to leave, but you sign yourself out and go home anyway.  You secretly take your own sleeping pills to the hospital, in violation of the hospital rules.  Are you responsible if something bad happens?  Yes.  You cannot hold a doctor responsible for the results of your willful disregard of his advice.

It is known as Contributory Negligence in some states and Comparative Negligence in other states.  There are important differences in the two concepts and the effects they can have on a medical malpractice case or a dental malpractice case.  Check which concept applies in your state.  You could have a valid case in one state and a meritless case in another state.

If your doctor advises you to have treatment and you refuse and something goes wrong, or if you sign yourself out of the hospital against the advice of the doctors.  In a contributory negligence state, it will probably prevent you from collecting a judgment. 

In a comparative negligence state, it will reduce the amount of your award.

Sometimes a patient who is drugged, mentally disturbed, confused, or senile will do something against a doctor's order, and something bad will happen.  The defense attorneys will claim there was contributory negligence, but that argument will not stand up.  It has to be a deliberate and conscious act by someone who knows what they are doing.

In a Maryland case, a confused, senile elderly lady climbed over the bedrails and walked as far as the bathroom before she passed out.  As she fell, she grabbed a hot water pipe with both hands.  By the time she was found, her hands were so badly burned by holding the hot pipe that they had to be amputated.  The defense lawyers claimed contributory negligence, but the court said no, because she did not do it deliberately.

It is not enough for a doctor to say that you left the hospital against his advice, or agreed to a risky treatment.  He has to either show you agreed in writing or he has to produce a reliable witness.  It is up to the defendants to prove you were guilty of contributory negligence or that you knowingly assumed an unusual risk.  You do not have to prove that you did not.

THE RULE IS: Your actions must have been willful and deliberate, have occurred at the same time as the medical malpractice or dental malpractice, and have contributed to the bad results.


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