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
A patient underwent angiography (dye study of the arteries). The
procedure was improperly performed, and the patient suffered brain
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
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
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
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
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
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
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
An experimental implantation of a muscle in the spinal cord resulted in
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.
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
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
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
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
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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