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Is It Really Medical Malpractice?

The blog, news and resources of Bieser Greer

December 12, 2016

Is It Really Medical Malpractice?


When a friend has an unpleasant or undesirable result after seeing a physician or going to the hospital, well-intentioned acquaintances sometimes suggest: “You should sue.” They often bring up the McDonald’s “hot coffee” case where an individual was awarded several hundred thousand dollars for spilling hot coffee on herself and argue that the misfortune under discussion is undeniably far worse than a coffee spill. There is a widespread misconception among many who believe that any time a person experiences a “bad result” or a complication after being treated at a hospital or by their physician that they have a potential claim for medical malpractice and that it could result in a large cash award. Your friend may have a serious injury, but is it really medical malpractice?

The law imposes a duty upon all of us to act with “reasonable care” toward each other so as to avoid harm and injury. If we do not act with “reasonable care,” then the law declares that we are “negligent.”  As to doctors providing services to us, they are required to act as “any reasonably trained and reasonably careful physician would act, or, refrain from acting, under the same or similar circumstances.” The requirement that a physician act as a reasonably trained and reasonably careful physician under the same or similar circumstances is what is referred to as the “standard of care.” What the “standard of care” specifically requires a doctor to do (or not do) in any given situation is a dynamic concept that changes depending upon the specific facts and circumstances encountered by the doctor.

When doctors do not meet the standard of care, this is a form of negligence referred to as “medical malpractice.” Thus, when a claim is made against a doctor for medical malpractice, the judge or jury must determine whether or not the accused physician has fallen below the standard of care.

With only a few narrow exceptions, the law requires that the standard of care which applies to any given set of facts must be established by expert testimony from another physician. Usually the reviewing “expert” will study available medical records and any sworn testimony that is available from the accused physician or other competent witnesses and, then, express his opinion as to whether the accused physician acted as a reasonably trained and reasonably careful doctor would have acted (or not acted). Indeed, in Ohio and in many other states, a medical malpractice lawsuit cannot even be accepted for filing unless a sworn statement from a competent physician is attached to the complaint indicating that the physician has reviewed available information and believes that a violation of the standard of care has probably occurred.

If the reviewing expert does not believe there has been a violation of the standard of care, there is no case. However, simply finding a violation of the standard of care is not enough. There must also be proof of a direct link between the alleged departure from standard of care and a real injury. In the law, this idea is referred to as “proximate cause.” If a doctor falls below the standard of care, but there is no injury proximately and directly caused by the malpractice, then a necessary element to prove a medical malpractice case has not been established and the case cannot go forward.

If it has been proven that a physician has fallen below the standard of care and that his conduct has caused injury, then the focus of a malpractice case switches to the issue of damages. It is then up to the judge or jury to determine what sum of money reasonably compensates the victim for the injury they have sustained.

Medical malpractice cases are rarely “easy” cases. They are almost always vigorously defended, are expensive to pursue and, in Ohio at least, result in jury verdicts in favor of defendant doctors more than 75% of the time when they are tried in court. While various numbers are often suggested, it is widely believed most malpractice cases cost the lawyer who files them anywhere from $10,000 to $100,000 or more to pursue. As a result, many lawyers who restrict their practice to medical malpractice cases are often not interested in cases where the injuries are only modest, even if a departure from the standard of care and proximate cause are clear.

Even at the most highly respected medical facilities throughout the country and even with the most skilled, experienced, and competent physicians, “bad results” and “complications” can and do occur, even when patients are treated with the best possible care. A bad or unexpected result or a difficult complication does not, without more, prove that the standard of care has been violated and that malpractice has occurred.

* This is an advertisement. The information provided here is for informational purposes only and should not be considered legal advice. You should consult an attorney for legal advice regarding your particular situation.