When you have no basis for an argument, abuse the plaintiff. -- Cicero
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Examples of strong cases.
It is most important that a plaintiff's medical malpractice lawyer screen cases and accept only those that are worthwhile. (In some states, the lawyer must certify that he has reviewed the matter with a qualified physician who states that the case is "meritorious.") Often the experienced lawyer can tell if the case is worthwhile from the first contact with the client. If it is not, the client should be informed immediately; the legal and medical systems should not be cluttered with the prosecution of worthless cases.
True medical malpractice consists of negligent conduct that causes damage. There may be "malpractice" from a theoretical point of view, but if the conduct has not caused injury it is not a matter for the legal system. Sometimes there may be true "malpractice" but no residual damage. These are not strong cases. Juries are not all interested in a past history of damage; they do become interested when a plaintiff can show permanent injury. (1) The following are examples of such cases.
A patient underwent surgery with Halothane (fluothane) as the anesthetic agent, even though he had suffered previous biliary tract disease, which made the use of this anesthetic contraindicated. The patient died as a result of liver necrosis due to the effects of the anesthetic.
A trainee anesthesiologist ran out of oxygen before the operation was completed, causing the patient to suffer a fatal cardiac arrest.
A patient who underwent surgery for the repair of a pilonidal cyst under epidural anesthesia ended up with permanent uncontrolled movement of the lower extremities.
A patient underwent angiography (dye study of the arteries). The procedure was improperly performed, and the patient suffered brain damage.
A patient suffering from severe third-degree burns received inadequate and improper "burn therapy."
A child was born with a blood problem-Rh incompatibility-antibodies developed by the mother were destroying the blood in the baby. The attending physicians and hospital personnel failed to detect the child's condition.
A mother who was a diabetic gave birth to a child suffering from "large baby snydrome," and proper care was not excercised in delivering the child. The baby suffered a shoulder-brachial plexus injury.
A newborn baby with a metabolic disorder was improperly diagnosed and monitored by the attending physician and hospital nurses. The child suffered permanent brain damage.
A pregnant patient was improperly evaluated and monitored during pregnancy and labor; a difficult delivery ensued, and the baby was born with permanent brain damage.
A patient in labor suffered prolapse of the cord. An emergency Cesarean section was delayed, and the baby suffered permanent brain damage.
A patient's obstetrician was twenty minutes late, and delivery room nurses had to deliver her child. Then, although the infant was suffering from respiratory distress, a pediatrician was not called for several hours. The child is brain-damaged and requires life-long care. (See 6.4 herein.)
An attending physician failed to control a patient's diabetes and potassium deficiency; the patient died. Diagnostic ERCP - Negligent injection of dy
During an endoscopic retrograde cholangiopancreatography (ERCP), an inexperienced nurse injected the dye too forcefully and caused the patient to develop pancreatitis and other debilitating injuries. (See 4.3 herein.)
An accident victim's operation to repair a skull fracture was delayed twenty-four hours because the patient was fed a regular diet by nursing personnel, despite a physician's order that the patient was to receive nothing by mouth. The patient suffered permanent brain damage.
A patient underwent unnecessary surgery that resulted in severe pain for which addictive medication was prescribed. The patient became a drug addict.
A patient with a minor infection repeatedly was given sulfa medication without proper indication. The patient suffered Stevens-Johnson syndrome and permanent eye damage.
Errors in diagnosis generally
A child swallowed foreign metal material, and the attending physician failed to diagnose the trouble. The child died.
A child ingested an alkaline solution and at the hospital emergency room the physician used the wrong antidote. The child suffered permanent esophageal injury.
A child was born with congenitally dislocated hips, but the attending obstetrician and pediatrician failed to diagnose the condition. There was permanent disability.
A patient suffered from cancer, but the attending physician failed to diagnose the disease. The cancer spread and the patient died.
A patient ingested insecticide. His physician incorrectly diagnosed his condition, and failed to administer the proper antidote. The outcome was permanent brain damage.
A patient suffered from ulcerative colitis of the sigmoid colon. His attending physicians failed to perform a sigmoidoscope examination, and the condition progressed, finally requiring removal of a large part of the colon.
A patient suffering from appendicitis was misdiagnosed; the appendix ruptured, and the patient developed fatal peritonitis.
A woman had a cancerous condition of the leg, but an inaccurate diagnosis was made, and the patient was subjected to heat and ultrasonic treatments. The cancer spread and the patient died.
A patient who fell was taken to the hospital emergency room where a diagnosis of inebriation was made. The patient actually had a fractured spine and a severed spinal cord. The result was permanent paraplegia.
Following surgery, a patient complained of difficulty in swallowing and pain in his throat. His neurosurgeon mistook the symptoms for a sore throat and did not come to see him. The patient died the next day from aspirating vomit. (See 9.5 herein.)
An on-call ophthalmologist, without seeing the patient, diagnosed his eye pain, sensitivity to light, and nausea as sinusitis, when in fact it was acute angle closure glaucoma. The patient lost sight in the eye. (See 14.2 herein.)
A urologist who visually inspected and palpated a patient's suspected testicle tumor by surgically pulling it up through the inguinal canal concluded that it was only an inflammatory process when in fact it was malignant. (See 17.4 herein.)
A patient complaining of low back pain received an injection of an experimental enzyme into a vertebral disc, causing a neurological deficit.
An experimental implantation of a muscle in the spinal cord resulted in quadriplegia.
A patient suffered a fracture of the forearm that was improperly set, resulting in Volkmann's contracture and permanent disability.
Even though a patient with a hip fracture was under a physician's care, X-rays of the hip were not made for nine days, during which time the patient was allowed to walk. The patient suffered severe narrowing of the hip joint and permanent disability.
A patient with coarctation of the aorta underwent surgical repair, but the heart-lung by-pass machine was not in operation, and the patient suffered nerve damage and paraplegia.
A patient underwent an unnecessary heart catheterization and developed a blood clot in the leg that was improperly evaluated. The patient suffered permanent disability.
A patient suffered from hemorrhage of esophageal varices. He was not given prompt and adequate treatment, and he died.
A patient was admitted to a hospital for minor surgery and was allowed to suffer from an uncontrolled nose bleed, causing shock and irreversible brain damage.
During an hysterectomy the patient suffered a severance of the ureter that went unnoticed. The patient lost a kidney.
A patient underwent an hysterectomy and experienced severe bleeding. Later a severe infection developed, as did other disabilities that required additional surgeries and transfusions.
A child suffered from a kidney disorder. During surgery the wrong technique was employed and the kidney was lost. Laboratory erro
A laboratory report stated that a small growth removed from a patient's arm was simply a benign inflamed mole, when in fact it was malignant melanoma. (See 16.3.)
A child suffering from meningitis was sent home with a prescription that was inadequate and inappropriate. The disease progressed, and the child suffered permanent brain damage. Pap smear not followed-u
A Pap smear taken from a patient who was complaining of vaginal bleeding showed "extremely suspicious cells," but her HMO gynecologist did not follow up with a later test, and her cervical cancer was not diagnosed for another two years. Also, the laboratory report was insufficient. (See 16.3.)
A male patient suffering from an earache was given a diagnostic spinal tap, after which he experienced a painful erection of the penis (priapism). Treatment was delayed, and when finally accomplished, bandages were applied too tightly, causing the patient to suffer permanent partial impotency and strictures of the urethra.
A patient complained of low back pain and underwent removal of a disc. There was nerve injury, causing the patient severe pain. Thereafter he had to undergo various operations on the spinal cord, all of which were unsuccessful.
A patient was injured in a serious automobile accident and underwent back surgery. A tear in the dura was not diagnosed, and the patient developed meningitis and died.
A patient underwent low back surgery for the removal of a disc. During the approach, an instrument accidentally went through the spinal canal and into the patient's abdominal cavity. A major blood vessel was lacerated, which almost took the patient's life.
A patient underwent low back surgery following a minor fall. There was no objective medical evidence whatsoever to justify surgical intervention. The patient suffered emotional and physical disability, and attempted suicide.
A patient undergoing a cervical laminectomy suffered from a preexisting osteophytic condition that contraindicated extension or flexion of his head or neck more than ten to twelve degrees. The nurse anesthetist who intubated and anesthetized him was never told of this condition. Following the operation, the patient awoke from the anesthetic a quadriplegic. (See 1.2 herein).
During an elective lumbar laminectomy, an orthopaedic surgeon caused a tear in the dura that resulted in a complete evacuation of cerebrospinal fluid, which in turn caused a brainstem herniation and death. (See 8.6 herein.)
A patient underwent surgery for removal of a portion of the stomach. Anastomosis (joinder of parts) failed, and the patient required further surgery with prolonged disability.
Unnecessary stomach surgery was improperly performed, requiring three additional major operations, and a prolonged period of disability.
A patient underwent surgery for the repair of a duodenal ulcer. He suffered duct damage during the procedure, and required four additional operations. He was permanently disabled.
An orthopaedic physician improperly reduced a fracture and failed to take adequate precautions to prevent infection. When the infection occurred, it was improperly treated. The patient suffered extended disability.
A child suffered from a congenital defect in a lower extremity. Surgery was performed without proper drainage, and the child developed infection that went unnoticed. There was a delay in treatment, which necessitated further surgery, and resulted in permanent damage.
A tracheostomy was performed at an incorrect level, then the tube was improperly attended by hospital nurses. The patient suffered erosion of the innominate artery, and bled to death.
Transferred without consent
A patient suffered from pancreatitis. While being transferred to another hospital without consent, she suffered severe brain damage and remained in a comatose condition until she finally died several years later.
Treatment delayed when patient not accepted
An attending physician failed to diagnose coronary occlusion and the patient was not hospitalized. When the patient's condition deteriorated, and he finally was ordered into a hospital, the hospital refused to accept him. He was transferred to another hospital but did not survive. 25.6 Fee arrangement-Advancing costs.
Most medical malpractice cases for the plaintiff are handled on a contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the recovery after costs are deducted "off the top."
Medical malpractice cases are such that usually there will be no settlement, nor even negotiations toward settlement, until the lawsuit has been filed and all essential depositions have been taken. In most well-prepared cases, there is virtually a trial through the discovery process before the actual trial in court. Therefore, "sliding scale" contingent fees (i.e., 25% before the suit is filed, 331/3/% after the suit is filed, 40% if the case goes to trial, 50% if the case goes on appeal, etc.) are not in vogue. But, of course, this is a matter of individual negotiation between you and your client, and should be in accordance with your local custom and practice. Some states now have statutes limiting contingent fees in medical malpractice cases. 2
After the first interview with your client, you may deem it necessary to have him or her sign a contingent fee agreement, subject, of course, to your right to withdraw should you find the case unmeritorious after additional investigation.
This fee agreement may provide, if permissible in your jurisdiction,
that you have the right to advance costs on behalf of the client (and
the right to be reimbursed). Ordinarily, the victim of medical
malpractice has been plunged into a financial abyss, and is unable to
undertake the cost of the investigation and prosecution of the case. The
matter will move much more expeditiously if you are in a position to
advance the necessary expense of investigation and litigation. These
advances usually do not include any sums for medical care and treatment,
however, and are limited to the necessary expenses for medical reviews
and examinations, and costs of investigation, depositions and the like.
Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
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