Published in Medical Malpractice on May 2, 2018
There are two primary issues that doctors, hospitals, nurses, and other medical professionals frequently use to avoid compensating patients who are injured while receiving medical treatment—standard of care and informed consent.
What do you have to prove to win a medical malpractice case?
Before we discuss how to lose a case, we have to understand what we have to prove to win a medical malpractice case. These cases are simply negligence cases against medical professionals. In any negligence case, an injured party must prove four things: (1) duty, (2) breach, (3) causation, and (4) damages. In medical malpractice cases, a plaintiff must show that a doctor or other medical professional undertook to provide certain treatment to the patient (thus creating the duty), that the professional failed to provide the treatment in an acceptable manner (thereby breaching the duty to the patient), and that the breach/bad medical treatment caused the patient to suffer an injury. The injury could be physical or financial. Obviously there are nuances to what must be proved in each case, but this provides a general summary of what a person must prove in any medical malpractice lawsuit.
How can Standard of Care help doctors avoid paying damages?
Standard of care applies to the duty and breach elements of the case. The standard of care refers to the generally accepted range of treatment options used by similar medical providers at the time that the patient undergoes treatment.
For example, if I visit my doctor complaining about a headache, my physician may tell me to take Tylenol, or Ibuprofen, or tell me to drink more water, or order an MRI, or any of a number of treatment options. While some of these options may be better than others, they would all probably fall within a range of treatment options that would be considered acceptable or standard. If, however, the doctor tells me that she is going to cut my arm off to make my headache go away, that treatment method obviously falls outside of the acceptable range of treatment. As such it would not meet the standard of care.
Thus, doctors strive to show that their decisions and treatment meet the standard of care to avoid liability. If there was simply a bad outcome from treatment that met the standard of care, you will almost certainly lose your malpractice case.
If you have ever undergone a medical procedure, you likely signed a form stating that you understood the risks associated with the procedure and were voluntarily submitting the procedure despite those risks. That form is part of the informed consent process.
Informed consent simply means that you agree to undergo medical treatment knowing about the risks associated with the treatment. To obtain informed consent, physicians discuss the possible side effects, risks, and outcomes associated with different treatment options before you receive the treatment. A physician can avoid liability where he or she warned you of a risk, possible bad outcome, or known side effect, which then occurred as a result of the treatment. For example, if prior to a surgery the surgeon warns you that one potential complication is that she could cut an artery causing you to lose blood and you elect to proceed with the surgery, you will lose a malpractice action against the surgeon for cutting the artery. Because many informed consent forms do not contain the risks of specific procedures or treatments, informed consent often comes down to a question of credibility between the medical provider and the patient, which makes this a weaker defense than the standard of care discussed above.
Medical malpractice actions have become increasingly complicated to try and win. Tort reform advocates have succeeded at making it difficult for injured plaintiffs to sue negligent doctors. It is imperative that you understand the likely defenses to be raised by your opponent.