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Your lawyer will tell you that pleading res ipsa is risky, and your chances of winning are not good. He will probably recommend using it only as a last resort, if you absolutely cannot find a doctor willing to act as your medical expert witness or

dental expert witness. Even though your case may be obvious, the defense lawyers will bring in experts against you and raise side issues and legal technicalities that you will probably lose.

But res ipsa does come into malpractice cases in another way and can be useful when you do not know exactly what happened or who was responsible. In order to sustain a legal complaint against somebody, whether it is for medical malpractice, dental malpractice, or food poisoning in a restaurant, you have to prove three things:

1. What injury you suffered.
2. Who was responsible.
3. How that person’s actions caused the injury.

What if you are not sure what happened, or who did it? When you go to a doctor’s office or into a hospital, people will say: “take this pill”, “hold still for an injection”, etc. Either they do not explain what they are going to do, or it is highly technical, and you do not understand it. People you never saw before, and may never see again, do all sorts of things to you. A doctor comes into your room the night before surgery, asks you a few questions, listens to your heart, and leaves. You do not know who he is or what his function is, but this is the doctor, who is going to give you anesthesia the next day. For three or four hours, your life and future health will be in his hands.

You have headaches or chest pains, and your doctor sends you to the hospital for arteriography (x-rays of an artery). In the x-ray department, someone you do not know, who could be a doctor, a nurse, or a technician, puts a tube into the artery in your groin and threads it up to your heart or brain and injects dye, so they can take pictures of the arteries. This is medicine at its best. But, do you know who they are or what they are doing? You can only hope they are qualified do it right.

In a Missouri case, a man had an aneurysm (weak spot and bulge) of an artery in the brain. Aneurysms can burst and kill you, but brain surgery to clamp them is risky and expensive. So, it was decided to use another treatment. The doctor put a tube into the femoral artery (in the groin) and threaded it up to the aneurysm in the brain. Then he injected a medical version of crazy glue, which sticks to human tissue. The glue seals the leak just as effectively as brain surgery. When it works, it is magic.

Before pulling out the tube, the doctor sent the patient back to x-ray to check that the glue was in the right place. But, by the time the x-rays were taken, the glue had hardened around the tip of the tube. One end of the tube was stuck to his brain, and the other was sticking out of his groin. The tube could not be pulled out without tearing the artery and causing a potentially fatal hemorrhage. The court held that a juror does not need a medical expert

witness to know that the tube should not have been left in until the glue hardened, and the patient did not need an expert to explain the malpractice.

Or, you are in an automobile accident and taken to the ER. They admit you to the hospital, where you may be treated by several different doctors and nurses. Ideally, you get the best medical care, and everything turns out fine. But, when you are discharged from the hospital and find out something was done wrong, how do you know when or where it happened, or who did it? Can you use res ipsa in those situations?

The way res ipsa works is best seen in a famous California case. A doctor took out a patient’s appendix, and when the patient woke up, he found that the nerves and muscles of one shoulder were permanently damaged. It is a long way from the appendix to the shoulder, so he sued the doctor for medical malpractice. Remember, we said you have to say who hurt you and how they did it in order to establish your case. The doctor’s lawyer said the patient did not have a case, because he could not say 1.) who had injured him, or 2.) how it had been done.

That was unfair, because the patient was asleep at the time, and there was no way he could know what happened. All he knew was that he had a normal shoulder before the operation and was crippled when he woke up. The case went up to the California Supreme Court, not once but twice, and both times the court said the plaintiff did not have to say who hurt him or how he was injured. Since the doctors and nurses were the only ones who knew what took place, it was up to them to explain how the injury could have happened without negligence.

That is how you can use the theory of res ipsa. When you do not know what happened, it shifts the burden of proving how you were injured to the doctor, who then has to prove he did not commit medical malpractice or dental malpractice. Does that go against the spirit of the law that says you are innocent until proven guilty? No. It is a matter of fairness and makes the person who has the information come forward with it. If a doctor could cover up merely by refusing to disclose what happened, it would be easy for him to win malpractice suits by concealing the evidence and would be unfair to his patients. Res ipsa makes the doctor come forth with the evidence and justify his actions.

Do you always need a medical expert witness or a dental expert witness to explain a doctor’s malpractice to the jury? You do, but there is an exception. The function of a medical expert witness or

a dental expert witness is to explain technical arguments in simple terms the jury can understand. In medical malpractice and dental malpractice cases, each side hires doctors as expert witnesses, to explain its version of what happened to the jurors.

What if you cannot find a doctor, who is willing to be your expert witness and testify on your behalf? If you do not have an expert witness, the judge will probably rule that you have failed to make a Prima Facie Case, which means you have failed to show you have a valid complaint, and the judge will dismiss your case before the jury even hears your arguments.

Can you get around that obstacle, or do you just let your case go? Theoretically, if you know a lot about medicine, you could take the witness stand and explain your side of the argument, but you would have very little chance of winning. Your expertise would be

no match for the specialists testifying against you, and you would be an easy mark for a skilled, defense lawyer.

Winning a medical malpractice or dental malpractice lawsuit is like winning a boxing championship – you actually have to beat the champ. A tie will not do. In a medical malpractice or dental malpractice lawsuit, the doctor you are suing can act as his own expert, because he is an expert – and win.

There is another way you can go. If the malpractice is so obvious that the average juror can understand it without an explanation, there is a legal theory called Res Ipsa Loquitur, which means “the thing speaks for itself”, and in most states, you do not need an expert witness. In an Illinois case, a patient had a myelogram (injection of dye into the spinal canal) to diagnose the cause of back pain. During the injection, he felt a severe pain in his leg and afterward found that his leg was permanently paralyzed. Since he was not lame when he walked into the hospital, and paralysis is not a normal and usual complication of a myelogram, the court held that the average juror could understand there was malpractice, and he did not need a medical expert witness to explain what happened. In a Kansas case, a surgeon left a gauze sponge in a woman’s abdomen. The court ruled it was common knowledge that leaving a sponge in a patient was malpractice, and the woman did not need a medical expert witness.

Before you start a malpractice case, you have to know if the time limit has run out. Our laws recognize that it is not fair to make people live in fear that someone may sue them for a long ago deed or mistake. Every state has what are known as Sta

tutes of Limitation, time limits for filing different types of civil actions.

All states have different Statutes of Limitation for medical malpractice and dental malpractice lawsuits. After a certain number of months or years, you can no longer sue the doctor or the hospital, no matter how bad the malpractice.

Should You File Early and Not Wait for the Deadline?

Yes. State deadlines are last-chance opportunities. There are many reasons why you should consult a lawyer and file your lawsuit, as soon as you are reasonably sure that you have been the victim of medical malpractice or dental malpractice. Even if you are not sure about the malpractice, and are within the time limit for your state, it is safer to talk to a lawyer and let her or him decide whether delay is advisable. The following are a few reasons for moving promptly on your case:

1. It protects you against having your case dismissed, because you missed the deadline. In some states, the deadline can be extended by a judge on a showing of good reason for the delay. In most states, if you go even one day over the deadline, you are out of luck.

2. It allows your lawyer time to discover what happened. In a Utah case, a woman suffered a surgical injury to the sciatic nerve that runs down the back of the leg. She considered her options for a long time. Finally, just before the time limit ran out, she consulted a lawyer, who filed a lawsuit against the surgeon. When the lawyer got the hospital records a month later, he learned that a hospital employee was to blame, and there was no case against the surgeon. It was too late to sue the hospital, and the plaintiff received nothing.

3. In some states, until you file your lawsuit, you cannot obtain all the facts and medical records, such as x-rays and doctor’s office records, to learn what really happened. It takes time to obtain documents and evidence.

4. In most instances, insurance companies are only concerned with cases that have been filed. They recognize these cases as serious claims and are more apt to settle. An unfiled lawsuit is an empty threat that goes into the inactive file and is ignored.

5. It allows you plenty of time to find the medical expert witness or dental expert witness you need. A New York lawyer had a strong case involving medical malpractice by a neurologist. In New York, a case can take a long time to come to trial, so the lawyer filed it away. Early in August, the court notified the lawyer that his case would come to trial just before Labor Day. When he started checking his files, preparing for the trial, he realized that he had never hired a medical expert witness. In the two or three weeks he had left, he started frantically looking for a qualified expert, who could testify on his client’s behalf. He was finally able to contact three neurologists, who agreed to help him, but none of them were available over the Labor Day holiday, When he went to court without a medical expert witness, the judge dismissed his case With Prejudice, meaning that it could not ever be brought again. The lawyer was sued by his client for legal malpractice.

6. Memories fade, witnesses move, and essential records may be lost or destroyed. The records and evidence necessary to your case should be gathered

as early as possible. A witness statement, made soon after the injury, is more valuable than one made years later.

7. Scars fade, pain subsides, and people adjust to their disabilities. With the passage of time, most injuries, even death, have less impact on a jury. Jurors are more impressed by imagining the suffering and problems facing an injured person, than by hearing the defense lawyers tell them that you have adjusted to your disability, are holding a job, driving a car, and have a happy family life.

8. Many medical malpractice cases and dental malpractice cases are settled instead of going to trial, and settlement negotiations can take a long time. If you wait to file your lawsuit until after the settlement negotiations, your payment could be delayed. But, if your lawsuit is filed before your lawyer begins negotiating with defense lawyers, it is in the pipeline, and he can engage in settlement negotiations, without delaying the trial if negotiations break down.

1. You should be prepared to show that you suffered a genuine emotional upset.

You should be seen by a psychiatrist or psychologist, who can confirm that you are not faking.  The doctor should order a complete medical work

-up, in addition to the psychological consultation.  Otherwise, the defense lawyer may convince the jury you are faking, or your condition is due to some other cause.

2. You must show that it was more than a temporary upset.

You should maintain contact with your doctor or psychiatrist, while your case is in progress, especially if you continue to feel the emotional effects of your insult or injury.  If you are actually under treatment by a psychiatrist, your case is stronger.  Your testimony that you have had psychological problems, since your injury, is not nearly as convincing to a jury as your treating physician’s testimony that you have required ongoing care.

3. You must show that it had an adverse effect on your life.

You should keep a diary of your problems and relations with others.  This helps to document the adverse changes that have occurred in your family, social, and business relationships.  Letters, documents, or written comments about your condition are also helpful to your lawyer; however, they should be spontaneous.  You should never solicit them from other people.  The courts will not admit written evidence,

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which has been prepared in anticipation of litigation.  In other words, the judge probably will not let your lawyer show the jury a document that has been written at your request because of the chance that it is phony or misleading.

A California woman sued a plastic surgeon, because he located her umbilicus (belly button) an inch to one side, while removing fat from her abdomen.  The jury gave her an award for a little displacement of her belly button.  She won because she first established malpractice by bringing in a professor of Plastic Surgery as her medical expert witness.  But, she also brought in a psychiatrist, who testified the plaintiff was so upset by bad results of the surgery that she had been under his care since it happened, and her career, marriage, and social life had suffered.

4. You have to establish that confidential information was leaked.

A medical malpractice case is not a criminal case, so you do not have to prove exactly who did it or how it was done, although it helps if you can produce a reliable witness, who heard the doctor talking openly about your condition.  But, it is not absolutely necessary.  The fact that confidential information, only the doctor heard from you in the privacy of his office, has become public knowledge is enough in some states.

A celebrity was in a New York hospital with a heart condition.  Some reporters have contacts inside hospitals and pay hospital employees for information about famous patients.  Every morning the New York newspapers reported on what had happened to the celebrity in the hospital.  His cardiologist said he first learned the results of his patient’s ECG (electrocardiogram) when he read it in the morning paper.  The celebrity sued the hospital for invasion of privacy and won.

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.

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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.

Does he have to tell you everything he is going to do? Go through the surgical operation step-by-step? Warn you about every possible complication? Discuss all possible alternative treatments, even if they are hardly ever used? What if the chance

of a certain complication is one in a million? What if it is one in ten? How about a 50-50 chance? It varies in different states, and the laws are complex. However, almost all states adhere to one of two standards in deciding what a doctor has to tell you in order to obtain a valid, informed consent. They are the reasonable physician standard and the reasonable patient standard.

The Reasonable Physician Standard

Lawyers call this the professional standard. But, the reasonable physician standard explains it better. It is the law in most states. It says that a doctor has to tell you as much as a prudent and reasonable doctor would, under the same conditions. In other words, he has to tell you as much as he thinks you need to know. This leaves a lot to the doctor’s discretion. If you want to charge that the doctor did not obtain a valid, informed consent, you have to call in another doctor as an medical expert witness to testify that a reasonable doctor would have given you more information.

How much does the doctor have to tell you in a professional standard state? Here are some of the things he has to tell you and some he does not:
1. He must warn you about any substantial risk of injury and tell you about possible alternatives that do not carry the same degree of risk.

2. He must also warn you about common complications and risks, even if the potential injury is slight. But, he only has to warn you about unusual or rare complications, if they are serious or dangerous.

3. He does not have to warn you about risks that are common knowledge or already known to you.

4. He does not have to tell you about alternative treatments that are experimental or ones that have been discarded by the medical profession.

5. He does not have to warn you about risks that are uncommon or rare, if they are not serious.

6. He does not have to warn you about any risk if he believes it would frighten you unduly and cause you to refuse necessary or life-saving treatment. This is called the Therapeutic Privilege. It is not justified just because the doctor thinks you might refuse beneficial treatment, and it only applies when there is a life-threatening risk if treatment is refused, or when safer or more conservative treatment has reached the point of no-return.

In a Hawaii case, the doctors suspected a patient had an aneurysm of an artery in the brain, which could burst and kill him. Before doing neurosurgery to clip off the aneurysm, it was necessary to perform a hazardous diagnostic test to confirm its presence and pinpoint the location. The doctors did not tell the patient about the danger of the test, because they were afraid he would refuse and suffer a fatal brain hemorrhage. The test left the patient paralyzed, and the patient sued, because he had not been warned of the risk. But, the court held they were justified because of the therapeutic privilege. The risk of death from brain hemorrhage outweighed the risk of paralysis from the test.

     
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