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Joseph M. Ghabour & Associates LLC

Why Medical Malpractice Cases Are Not Always So Simple

You have probably heard of a nightmare story from a friend or family member describing how a doctor made a mistake. Hopefully, you are one of the fortunate ones who has not been the victim of doctor or hospital mistake. But if you have been a victim, you probably already know that it is not always so simple to sue a doctor or hospital. You may have already consulted with several lawyers and have been turned away because the case is either too weak or not large enough to warrant the time and expense associated with such a case. What makes a case weak or not large enough? The answer is in the details.

 

To sue a doctor or hospital in New Jersey, you must show that the doctor or hospital staff deviated from the acceptable standard of care AND you have been injured as a result of this deviation. Deviation from the standard of care is not always simple to prove. For one thing, a bad outcome does not necessarily mean the doctor made a mistake. Sometimes the procedure involves an inherent risk that the patient has been made aware of. While we all hope for the best when it comes to our medical treatment, but it is not always the outcome. Take for example, a 15 year old active girl who was once involved in a variety of sports activities and rarely ever complains of physical pain. One day, she has difficulty breathing and goes to her doctor. After a variety of tests over several weeks, the doctor was unable to diagnose her condition and orders a routine cardio-cauterization. Cauterizations are routinely done (with thousands performed daily in NJ), most with little or no complication. The cardiologist performed the cauterization and during the procedure, her heart stops and the doctors and staff are unable to resuscitate her, the girl dies on the operating table.

Her parents consulted with me, more than a year after her death, after having been turned down by several other law firms. I promised the parents I would review the records and have a cardiologist review the records to see if their daughter's doctor made a mistake. About 2 weeks later, I received a phone call from our expert cardiologist and his first words were, "this was tragic." However, he continued to say that he always teaches young cardiologists that "there is no such thing as a routine cauterization." After a thorough review of the records, he concluded that the doctors did not make a mistake. The girl's heart just gave out. I remember the meeting I had with her parents to explain to them why they could not sue their daughter's doctor. They were very upset (and rightly so). The parents had a hard time believing that their vibrant 15 year old daughter's heart could just ‘give out." But that was exactly what happened and their doctor was not at fault.

Once you are certain your doctor deviated from the standard of care (and by that I mean you have a different expert doctor, in the same specialty as your doctor, say to a medical certainty that your doctor has made a mistake and that a different doctor in his or her position would have made different treatment choices), you must show that you suffered an injury. Sometimes (and it happens every day) doctors make mistakes, but those mistakes may not cause the patient harm. For example, a doctor who ordered antibiotics for a patient whose condition is not treatable with antibiotics. Even though the doctor made a mistake, the patient was in all likelihood, not injured. If however, the doctor knew (or should have known) that the patient was allergic to said antibiotic and prescribed it anyway, and the patient dies, then surely that doctor made a mistake and that mistake has caused an injury (or in this case, death) to the patient and the doctor is held liable.

Have you been the victim of doctor or hospital mistake? Click here to order our free book or Give us a call at 877-MED-MAL7 for more information and to schedule an appointment to discuss your case.

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