In medicine there is a standard of care. In DC, that standard of care is a national standard. In Maryland that standard is a community standard. The standard is established by the best practices of doctors and hospitals in how to deal with patients with particular ailments.
There has to be a breach of that standard of care, and that means either a doctor did something that he or she wasn’t supposed to, or didn’t do something that he or she was supposed to.
There have to be damages. Particularly in medical negligence cases, there have to be significant damages, because these cases can cost from tens of thousands to over $100,000 just in costs of litigation, with investigation and experts involved etc. Most attorneys do not take cases where there is not some significant injury, permanent injury, or chronic condition that resulted from the breach.
Then there has to be a connection between the two; there has to be a direct link between the breach and the damages. The insurance companies fight these cases tooth and nail on behalf of the doctors and hospitals because of reputations, insurance rates, and everything else that affects that doctor or hospital. Even more so than other cases, you have to expect to go into litigation, and you have to look at it from that perspective right from the get-go.
There is also a lot of room for judgment. Medicine is not a science where everything is black and white. There’s a certain art to it, so there’s a lot of judgment involved. If an informed judgment was made and that judgment was within a range of reasonable treatments, then the doctor or hospital is not at fault.
There are certain acceptable risks or known complications of procedures and treatments that, unfortunately, can happen, so it’s not the fault of the doctor or of the hospital. Just because there’s a bad outcome does not mean that it was caused by medical negligence, and you have to know the difference. You’re not going to try to prove something that falls into some of those categories, because that is not negligence, and you’re not going to spend a lot of money doing that.
A seasoned, experienced attorney with the proper resources and experts will be able to focus on the significant issues in a medical negligence case and be able to identify a case that is actual medical negligence versus one that is not.
Also, just because one lawyer says that it’s not a case to pursue does not mean that it’s not medical negligence. There are a lot of business decisions that go into handling a medical negligence case – the cost, the amount of work, the length of time involved in handling the case – so the damages have to be significant enough. To put that much time, effort, and expense into a case, the client needs to walk away with a reasonable recovery in their pocket, so there is a significant cost-benefit analysis that goes into medical negligence cases.
These are things that have to be discussed with the client in the beginning. Many times clients are very emotional about a less than satisfactory outcome or, in some instances, very bad outcomes, but educating the client in what medical negligence cases are all about and making sure that a proper decision is made either to pursue or not to pursue a case is extremely important.
How different attorneys in different firms can make different decisions about pursuing these types of cases depends largely on a cost-benefit analysis. Some firms have the resources to take riskier cases. Some firms don’t have the resources and therefore will only take very clear-cut cases. For lawyers, this area is often not a science, it’s an art.
John Yannone: Through the years I have seen just about every kind of malpractice, but generally misdiagnosis, failure to diagnose, surgical negligence, and obstetrics malpractice… perhaps a C-section is indicated but they don’t act fast enough. Those are the general categories that I deal with the most.
