what makes a strong medical malpractice case part ii

In the last post, we discussed some of the factors that go into assessing the strength of a medical malpractice case. We talked about a health care provider’s breach of their duty to provide the appropriate standard of care, and about damages to the patient.

What other factors indicate the strength or weakness of a medical malpractice case? One indicator is the circumstances the patient was in at the time of the treatment. In other words, were there other possible causes of the damages that were suffered? Cases are stronger when the patient was in good health (other than the condition they were being treated for), and the treatment carried low risks. Likewise the risks of the treatment have some weight on the strength of a malpractice action. A patient who died during a minor outpatient procedure would tend to have a stronger-looking case than a patient who died during a high-risk brain surgery. This does not mean the family of a patient who died as a result of a mistake during a high-risk procedure should not pursue legal remedy. It just means these cases can sometimes be more difficult to prove.

The brain surgery example leads us to a more subtle analysis of negative consequences of medical treatment, but along the same lines: Were the negative results within the expected risks of the treatment? If a patient accepted treatment understanding the risks involved, then a malpractice case would only be likely to succeed if it could be proven that the harm to the patient was beyond those acceptable risks. A strong case would be one in which expected risks came about, but the doctor did not act to remedy them.

Another facet of these cases that Pennsylvania medical malpractice attorneys recommend that patients consider is whether or not there are other ways of addressing negative medical results.

To put it another way, a negative outcome does not always mean that a medical malpractice claim is appropriate – or that medical malpractice has actually occurred. What most patients and family members want is answers, and there may be other ways to find out what really happened without resorting to legal action. Of course, if the doctor refuses to discuss the matter, it may be they have something to hide.

In the end, the merits of a malpractice action cannot be judged by a checklist, and the decision to pursue legal action should not always be based solely on the apparent “strength” of a case. It is true that medical malpractice cases can be complex and challenging, but those who have suffered or lost a loved one due to preventable medical error should not be discouraged from pursuing full justice and full compensation.

Source: CNN “Harmed in the hospital? Should you sue?” 3/24/2011

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