PART 1. THE BASIC ISSUES
In my office, we get many, many calls about medical malpractice claims. That fact is pretty startling because of another fact: the level of medical practice in Shasta County California is, quite frankly, very good. Sure, mistakes get made. But by and large, the level of practice I have seen is first class. Granted, I’m not a physician. But I have been reading medical records and evaluating treatments and outcomes for clients all over the west coast for over 40 years. Trust me, you are way better off if you are sick or injured here than in a whole lot of other places.
I believe that the number of inquiries that we get is a consequence of four things.
First, people are surviving medical conditions they simply would not have survived 50 years ago. That makes them more vulnerable, and makes the people who love them more hopeful. When that hope is dashed, the result is frequently not gratitude for the extra time and quality of life the loved one got, but anger and frustration that it was cut off.
Second, people frequently confuse bad luck with bad medicine. Just because someone you love was healthy one day and dead or seriously disabled the next does not mean they received inadequate medical care. We have to be careful to distinguish between tragedies that result from bad medical care and tragedies that result in spite of wonderful medical care. We all have to remember that every doctor will eventually get the ultimate bad result with every patient. We all die. The only way a doctor can prevent seeing a patient die is for the doctor to die first.
Third, many people simply do not understand what is or is not medical malpractice. Medical malpractice happens when a health care provider fails to provide the kind of care a properly trained healthcare provider would provide under the circumstances. In order to prove medical malpractice, you have to prove that no reasonable health care provider in this person’s field would have done what he or she did under the circumstances presented. It does not matter if another provider is of the opinion that another mode of treatment would have been better or safer or given a better result. A health care provider does not have to provide perfect care, only care that is consistent with generally accepted medical practice.
Often, there is more than one generally accepted medical practice in a given set of circumstances. For example, for many years there was a complete divergence of opinion among experts about how to treat snakebite. One group took the position that you should always do a surgical procedure called a fasciotomy. The other group took the opposite view and said you should never do one. The result was that following either view was within the standard of care. It makes no difference that every healthcare provider you talk to after the treatment in question says a different approach would have given a better result. Following a generally accepted approach is within the standard of care, even though the approach may be controversial or less than ideal.
Finally, the fact that the doctor or the nurse was a jerk or was rude or seemed to ignore you does not mean that you have a malpractice claim. Sometimes, people complain that the facility in which they got treatment was dirty or poorly run. That does not constitute malpractice unless you can prove that the condition you did not like caused you injury. And not just any injury, but a long-term, serious injury.
Fourth, most lawyers are either unequipped or unwilling to accept medical malpractice cases for a variety of reasons. Medical malpractice cases are highly technical; very few lawyers know enough medicine to deal with a malpractice case. They are very expensive to handle (more about that later). The lawyer may have to spend several thousand dollars simply to find out if what happened to the patient was bad medicine or bad luck. If it is bad luck, the money is gone and there is no case.
But the two biggest reasons that lawyers dodge these cases are these: It is very difficult to convince a jury that medical malpractice has happened; and, if a lawyer is successful in convincing a jury that this a case of medical malpractice, the financial aspects of medical malpractice cases are stacked so heavily against the patient and his or her lawyer that many meritorious cases cannot be reasonably pursued.
Medical malpractice cases are hard to win simply because jurors do not want to believe medical malpractice happens. In some respects, the more dire the case and the more diligent the patient, the less inclined jurors are to find malpractice. If a woman finds a lump in her breast, goes to see her doctor, the doctor runs tests, and she’s told there’s no problem, she wants to be able to take that home with her, wrap her arms around it, and take it to bed with her every night. A woman on a jury does not want to be told in convincing terms that she cannot do that. She doesn’t want to know that a clean bill of health from a doctor regarding a lump in her breast may mean nothing. A man with rectal bleeding who goes to see his doctor and is told that it is just hemorrhoids does not want to have to worry ever again about it being colon cancer. And if a verdict against the doctor in a breast cancer case or a colon cancer case tells a juror that he or she cannot believe their doctor, that juror may decide subconsciously that it’s more comfortable to blame the patient than the doctor. We have to trust our doctors. If we can’t do that, we have no security, no safety, no place to hide because we don’t have the knowledge to distinguish between symptoms that are benign and symptoms that are lethal. We do not want to admit that someone’s diagnosis was wrong, because that could mean that our diagnosis – that we love, cherish, believe in with all our hearts – is wrong.
Unfortunately, many of my colleagues, other lawyers, do not want to tell the truth about medical malpractice cases. In part, I think it’s because nobody likes to give bad news. Beyond that, the explanation is neither simple nor short. Further, a thorough explanation involves telling the client about an aspect of our system that is grotesquely unfair. It is so much easier to tell someone that they have a good case or that they should inquire further than to tell them they need to start living with the reality they’re facing: their loved ones is sick; their loved one is dying; their loved one is dead; and there is nothing to be done about it. Nobody wants to be the have to tell another grieving person anything like that. It is so much easy to punt and play the “I am too busy” card.
Unfortunately, failing give out the bad news leaves the poor person, who may simply be seeking answers so they can be peaceful, with a quest that they can’t leave alone. I wish I had a nickel for every time I’ve had to explain why their case is hopeless to someone who has seen several other lawyers who did not take the time to help them understand. I take at least some comfort from the fact that almost all the time, the explanation helps them to become peaceful about where they are. If any of my fellow members of the bar come across this piece, I would implore you not to take the easy way out and tell people why even many righteous medical malpractice claims can’t be pursued.
NEXT TIME: PART 2 – HOW THE DECK IS STACKED.
Dugan Barr has practiced law in Redding since 1967. He has tried more than 200 civil jury cases to verdict. He is married and has five children. The offices of Barr and Mudford, LLP, are at 1824 Court St. in Redding and can be reached at 243-8008.
