You Received a Terrible Result.  It Must be the Doctor’s Fault.

Your husband had by-pass surgery.  Afterward, he developed an embolus (air bubble) that lodged in his brain and left him paralyzed and in worse condition than before the surgery.  He is certainly entitled to get something for such a terrible result, right?  Not necessarily.  Some surgical and medical treatments carry high risks.  Complications, including death, can occur without any malpractice.  Remember, there has to have been  malpractice, and you have to show that it was the probable cause of your injuries.

The Rule Is: Bad results alone will not win a malpractice lawsuit.  In every successful malpractice case, there was some identifiable incident or action that was, more likely than not (a greater than 50% chance), the cause of the injury.

Rudeness and Neglect

No one answered the call button when you were in severe pain, or you found that your mother had been lying on a bedpan all night, or you were kept waiting for three hours in the ER, or they left your father outside the x-ray department all afternoon with no one to attend to him when he was only semiconscious.  Outrageous neglect?  Yes, but they do not qualify unless they caused some bad result, in addition to the annoyance and aggravation.

A man with a stab wound of the chest was kept waiting in the ER of a Georgia hospital for over two hours and passed out twice before a doctor arrived to take care of him.  However, the wound was successfully repaired, and he suffered no bad effects from his ordeal, so his lawsuit was unsuccessful.  He should have reported the hospital to the health department or the department of human resources.

The Rule Is: Neglect, rudeness, and bad manners may be infuriating and justification for strong words, but you must show they actually caused some damages to justify a medical malpractice lawsuit.

You Like the Doctor and Really Do Not Want to Sue Him.

Unless you feel strongly that you have been wronged, and have a healthy dislike for the person who did it, you will not win your case.  A malpractice case can take several years.  If you are not committed to it in the beginning, you will not have the stamina to see it through to a successful conclusion.  You will only spend time and money and receive nothing in return.  The insurance company lawyers are hoping to wear you down.  One of their ploys is to make you feel sorry for the doctor, or run out of patience, so you will drop your lawsuit or settle for a nominal amount.

The Rule Is: A malpractice case is always a fight, ostensibly between you and the doctor, but it really is between you and the doctor’s malpractice insurance company to see who gets the money that was set aside for your protection.  Unless you are serious enough to fight and see it through to a successful conclusion, you should not start a malpractice case.

You Want to Sue the Doctor but Not the Hospital or Vice Versa.

For some reason, you do not want to sue one of the parties responsible for your injury.  Maybe you work for the hospital or the doctor lives just down the block, and you do not want to make enemies.  Forget it.  The surest way to lose your case is to leave out a party, who should be named as a defendant.

In a Florida case, a woman suffered a serious injury while under general anesthesia.  Since she was asleep, she had no way of knowing whether it was caused by the surgeon, the anesthetist, or a hospital employee.  She did not want to sue the local hospital for personal reasons and only sued the surgeon.  When her expert witness testified at the trial, the defense lawyers asked him if he could say for certain that the doctor, and no one else, had caused the injury.  Of course he could not.  The injury could have been caused by anybody who handled her while she was unconscious.  So, the judge threw her case out of court.  If she had sued everyone involved, Jointly and Severally, admitting that she did not know who was responsible, because she had been asleep, and let the jury decide who was responsible, she probably would have won her case and received an award.

There is another risk in leaving out people, who may have caused your injury.  Defense lawyers may find a doctor who was involved but was not named as a defendant in the lawsuit and cannot be sued because the statute has run (too much time has elapsed).  The defense lawyers blame it all on that doctor.  Maybe he even cooperated to help save his colleague and becomes a Voluntary Defendant, which means that he assumes all the blame for what happened to you.  That gets everybody else off the hook, and since he can no longer be sued, it leaves you holding the bag.

The Rule Is: Sue everybody who might have caused your injury.  You can always drop your complaint against anyone who turns out not to be at fault.  But, you cannot sue anybody after the time limit expires.

Cancer and High-Risk Diseases

Cancer is a dread disease that inspires fear in most people and jurors.  The cancer specialist can justify disfiguring surgery or giving the most poisonous drugs or deadly radiation, in order to save his patient from certain death.  The same rule applies to heart surgery, in which one patient in ten can die, even with the very best care.  In this type of case, the fact that you received a bad result does not mean a thing.  You have the difficulty of showing there was no excuse at all for the bad result.  The doctor can get eminent professors to testify truthfully that they have had lots of patients die in spite of their best efforts.

The one big exception is failure to diagnose and treat cancer or serious heart disease until it becomes incurable.  Today, many cancers are curable if treated early.  If you can show that negligent delay in diagnosis and treatment caused a cancer to go from a treatable stage to an incurable one, or that heart surgery was delayed until after the fatal heart attack, you have a solid case.