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You have surgery for sinus trouble but do not get any relief because of negligence by the ENT specialist, who performed the surgery. He continues to treat you for another 10 years. Can you still bring a medical malpractice lawsuit

, even though you realized you have been the victim of malpractice, after the operation 10 years earlier but did not file your lawsuit?

In some states you can. The clock does not start until after the last treatment for the same or a related condition. Continuing treatments for the same sinus trouble would stop the clock, so would respiratory trouble or ear disease, if they were complications of the sinus trouble. But, treatment for a sprained ankle or a stomach complaint would not do it, because they are not related to the sinus disease.

Some people use this law to bring a medical malpractice case to life, long after the time limit has run out. When they find out too late the

doctor has done something wrong, they go back and ask for another treatment. That can automatically start the clock running again.

In a Michigan case, a man had over 200 hair transplants for baldness. He liked them at first but later decided he did not like them. As time went on, he became more and more dissatisfied and finally decided to sue the dermatologist for medical malpractice. However, the two-year time limit had run out, so his lawyer told him to go back to the doctor and get just one transplant to cover a small bare spot. The unsuspecting dermatologist did it, and the very next day, the man’s lawyer filed a medical malpractice lawsuit for everything that had been done years before. The single treatment started the clock again.


This means legal disability, not physical disability. It includes minors, mental incompetents, persons in a coma, or persons who are physically prevented from exercising their legal rights, such as military personnel serving abroad or people in jail. Anyone who is prevented from exercising his or her legal rights for good reason is considered legally disabled and the Statute is Tolled (the clock is stopped) until the legal disability is removed. Most states do not start counting until the disabled person, or a legal guardian, is able to assert their legal rights.

If a child is injured, the clock may not start running until the child reaches age 10 or even full adulthood. Other examples of tolling the statute are: if a person is temporarily, mentally incompetent because of an overdose of drugs given by a doctor and is spaced out for a long time, or if a person is confined in a mental institution. It may not start until after the person is released and has become mentally competent again. Some states even extend the time limit for people in prison. A person in prison is usually not in a position to do anything about it until after they are released. Fundamental fairness requires an extension.

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.

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.

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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