• 30
  • March
    2011

In our last post, we looked at a recent CNN article discussing medical malpractice claims and how one can discern when a case is appropriate to bring to court. Here we continue that discussion.

According to experts, knowing when to sue and when not to sue a doctor or hospital can help keep medical costs from rising for all of us. But what, generally speaking, makes for a good case?

In one type of situation, a patient may have fully recovered from a surgery or treatment despite professional error. These are generally not good cases. Even though something awful could have happened to the patient, there is not a strong case unless it did in fact happen. If there is no harm, the case remains weak. But, if the patient requires expensive ongoing treatment as a result of the professional misjudgment, the patient is much more likely to have a case. Significant damages, such as losing a limb, having a stroke, death, increase the strength of the case.

Those case are weak in which there are underlying factors-such as obesity or smoking-which make the medical problem worse or which, taken by themselves, can cause the problem. Cases where there are no such underlying factors, but which result in damage or death, are comparatively much stronger.

In some situations, a doctor may have acted very rudely or totally without courtesy, but has nevertheless provided the standard of care. These are not good cases. There must be some type of professional negligence concerning the medical care itself.

Another weak type of case is one in which the medical outcome is within the range of acceptable risks to which the patient agreed. Prior to treatment, patients sign informed consent agreements detailing the risks and benefits of the treatment, and are presumed to have agreed to the acceptable range of outcomes. A viable case will need present evidence of some type of actual negligence on the part of the doctor which resulted in real harm.

As a final example, cases in which there may be avenues of resolving the problem other than litigation are not necessarily going to be strong cases. Experts say it is generally best to approach the physician first and try to resolve the problem. On the other hand, cases where a physician ignores a serious problem or fails to communicate about the issue are stronger by comparison.

In choosing to move forward with a lawsuit, there are several things to keep in mind regarding the seriousness of a medical malpractice claim. First, one's relationship with one's doctor will end with litigation, so experts recommend that one is sure the damages are large enough to burn that bridge. Second, litigation can be draining and emotional, and often protracted, so be prepared for that. Further, losing a case can be expensive, especially when a doctor asks the judge to make the plaintiff pay for costs of defense. Finally, many states have caps on rewards for pain and suffering, so there are often limits to how much a patient can recover in a malpractice suit.

Source: CNN, "Harmed in the hospital? Should you sue?," Sabriya Rice, 24 Mar 2011.