411: Medical Malpractice (To sue, or not to sue: that is the question.)
Medical malpractice is fairly self-explanatory; it refers to the failure of a medical professional to render proper medical service and/or care, due to ignorance, negligence, etc., especially when the wrongdoing results in damages/injury to the patient. Doctors receive years of schooling and training because they are charged with keeping us healthy – we trust them with our life. They are medical professionals, but they are not miracle workers; sometimes things go wrong. If what went wrong could have been avoided were it not for clear negligence or misconduct on the part of the doctor, and a patient suffered as a result, the patient may successfully sue the doctor for medical malpractice in an effort to be paid damages for the harm caused by the doctor to begin with. However, sometimes a doctor isn’t to blame when something doesn’t turn out the way we’d hoped it would – sometimes there is no viable medical malpractice case.
It takes a professional medical malpractice lawyer to know whether something is a legitimate medical malpractice case or whether it is just an unfortunate part of life. Here, at the Law Offices of Aronberg & Aronberg, we’ve spent years investigating, researching and working on medical malpractice cases, so we know what is necessary to successfully pursue a medical malpractice case. In this blog, we are going to look at a couple of examples of scenarios and we will breakdown, for each, whether or not a medical malpractice case might be warranted.
Our first scenario involves a man who claims a penile implant caused him to have an erection lasting eight months. The man is now suing his doctor for unspecified damages. During the eight-month period, the man’s attorney argued, he was forced to wear baggy pants, remain inside, and generally avoid many otherwise enjoyable parts of life due to his long-lasting erection. Eventually, the man had the prosthesis removed and has a replacement prosthesis from a different doctor. However, according to the plaintiff, the scar tissue from the first surgery, conducted by the doctor being sued, has left his organ in question roughly 50% smaller, a fact that has proved rather problematic for the man. The attorneys for the doctor, however, argue that sometimes procedures don’t turn out well even though nobody is to blame. Furthermore, the doctor’s attorneys claim, they reached out to the man four months after the initial surgery and told him the prosthesis had to be removed, but the man waited months to respond to the doctor’s notice. This case is still ongoing, and so all of the details have yet to be worked out. If negligence is proven by the plaintiffs, however, and if they can reference other cases where certain precautions not taken in this case were taken, and successful operations resulted, perhaps the man who suffered an eight-month erection and lasting damages will be compensated for his troubles.
Next, we move on to another type of case. A patient goes to see a doctor about a pain in his chest. The doctor reviews scans of the chest, but tells the patient that nothing of any significance is at hand. Three weeks later, the patient, still in enormous pain, visits another doctor and presents the new doctor with the scans that the first doctor reviewed and paid little attention to. This second doctor immediately realizes that there is a serious medical problem that has worsened considerably over the past few weeks without proper attention, and full resolution of the problem is probably out of the question. In this case, it is very likely that the first doctor engaged in medical malpractice by not recognizing an obvious sign of a major medical issue in the scan. If it can be proven that a trained doctor, fulfilling his duty of care to his patient, should be able to recognize the problem in the scan that the first doctor reviewed, that doctor may very well be successfully sued for medical malpractice, having negligently told the patient not to worry, thereby allowing the issue to go untreated and worsen.
In this next scenario, a patient goes in for plastic surgery and tells his surgeon that he wants his nose to look exactly like his favorite movie star’s. The doctor, of course, assures him that no guarantees can be made and that undergoing surgery always involves risk. Nevertheless, the man undergoes the surgery and, after the surgery, realizes that of course his nose does not look exactly like his favorite actor’s. As a result, he sues the doctor, claiming the doctor made a mistake and has left him dealing with a nose that he did not want. Assuming the doctor did not engage in any negligent behavior while the surgery was going on, and assuming he followed protocol, he is not likely to be held responsible for the fact that the operation did not turn out as the patient had hoped. The doctor clearly warned that no guarantees could be made, and an unreasonable expectation of perfection was the foundation for the lawsuit. This incident, exceptional circumstances excluded, would probably not make for a viable and successful medical malpractice case.
Remember, medical malpractice does not have to involve physical medicine – no blood need be drawn or skin broken for medical malpractice to take place. There are countless examples of psychiatrists and psychologists acting in inappropriate ways, which have led to self-harm of their patients. In many of these cases, the doctors have been held liable for the damages for failing to practice psychiatry or psychology in a professional way and causing harm to their patient and their patient’s family.