Helpful Articles
Why Determining Medical Malpractice Can Be Challenging for Non-Attorneys
In most jurisdictions, the key to proving malpractice goes
beyond determining what happened and what went wrong -- it goes to whether the
healthcare provider’s actions (or inactions) didn’t live up to the standard of
care that’s expected. Even lawyers can’t come up with that determination. They
need to hire medical experts.
You can get the facts. What do you do with them?
The average person will probably have a very difficult time finding the relevant facts of a possible medical malpractice case. As a practical matter, a patient who thinks they’ve suffered medical malpractice may be able to obtain all the records from the appointments at issue, get all the lab and radiology reports as well as hospital records. Then what?
Without deep understanding of medical terms and knowledge of practicing medicine, what does all this information and data mean? There may be evidence of medical malpractice somewhere in this pile of paper, but it may be practically impossible for the average person to pinpoint the problem, let alone come up with an educated opinion as to whether medical malpractice took place.
Not all injuries inflicted on patients by healthcare professionals are caused by malpractice.
The average person will probably have a very difficult time coming to a well-grounded legal opinion that medical malpractice took place. Just because a person interacted with a healthcare professional and ended up suffering harm as a result doesn’t mean the person has a valid medical malpractice claim.
Medical malpractice lawsuits are based on state law and can vary from jurisdiction to jurisdiction, but generally healthcare providers are allowed a certain amount of flexibility in providing care. There may have been any number of actions a competent healthcare provider could have taken under the circumstances. As long as the person acted within a certain range of actions, there may not be medical malpractice, even if the patient was harmed as a result.
Standard of care
Whether the healthcare provider’s actions, or failure to act, falls within an acceptable range of treatment or falls outside it and constitutes medical malpractice requires an expert opinion (someone qualified to testify as an expert in the particular medical specialty or job).
An attorney, especially one experienced with these types of cases, could have a belief one way or another, but that’s not good enough. In many jurisdictions, a medical malpractice case can’t even be filed, let alone proven, without an opinion from a medical expert that malpractice may have occurred. If the case goes to trial, there will probably be experts from both sides; and the outcome may come down to how well a jury connected to and believed in one expert over the other.
“Standard of care” is a legal, not a medical, term. It generally means the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the medical knowledge available to the professional. If a patient can prove that what the professional did was below or violated that standard, the case will probably be successful.
Standard of care can be interpreted as whether what was done was based on the customary practices of the average physician/nurse/pharmacist/EMT/pathologist, etc. What would a healthcare provider customarily or typically do in similar circumstances? Depending on the jurisdiction, that average healthcare provider may be measured against those who practice locally or nationally.
How clearly the standard of care was met, or not, depends on the facts.
- A surgeon under the influence of drugs makes a serious mistake during an operation, cutting a major artery or important nerves.
- A physician suggests a patient use one medication over another. Their effectiveness is about the same, but if the patient suffers a serious allergic reaction, might there have been something the physician missed? Were there questions the doctor should have asked the patient? Did the doctor lack some important knowledge about the drug?
- A radiologist reading mammogram results may miss a tumor. Did it look just like dense but normal tissue? Should additional mammograms have been performed to double check the findings?
Not only can non-attorneys have a difficult time determining whether medical malpractice took place, even an attorney experienced with these cases may have a hard time of it depending on the facts of the case and applicable law. Expert medical opinion is what makes the difference in medical malpractice cases, and that is something the average person isn’t qualified to come up with.
