THE RELENTLESS PURSUIT OF JUSTICE MARK A. GLASSMAN, ESQ.
As an attorney who handles a significant number of medical malpractice claims, I spend a good part of my day fielding and responding to phone calls and e-mails from people who believe they have been injured as a consequence of negligence by a healthcare provider. However, the vast majority of people I speak with do not have what would be considered a viable medical malpractice case. When I turn down a potential case, I am invariably confronted with same question --- “Why?”
There are many reasons why an attorney would turn down a medical malpractice case. The easiest answer is that they are difficult and expensive. In order to prevail on a medical negligence claim, the claimant must prove that the defendant physician deviated from the recognized standard of care, and that the deviation caused injury and damages to the claimant. Before contacting any attorney with regard to a potential medical malpractice claim you should be able to provide a concise answer to the following questions:
1. What do you believe was the act of negligence by the healthcare care provider?
2. When did you first suspect negligence?
3. How did the act of negligence cause injury to you?
4. What damages did you incur as a result of the negligence?
When most people contact an attorney regarding a potential medical negligence case, they are prepared to discuss how the healthcare provider was negligent. However, most people are unprepared to discuss the issues of causation and damages. In fact, most of the cases I turn down are because we are unable to establish a causative link between the act of negligence and the injury and/or damages incurred.
For example, I recently spoke to a potential client who presented to a hospital emergency room with significant abdominal pain. After an evaluation, he was discharged home with a diagnosis of indigestion. Since his abdominal pain continued overnight, he sought treatment at a different hospital the next day. This time the patient was diagnosed with an appendicitis, and underwent emergency surgery. The potential client contacted me because he wanted to pursue a negligence claim against the physician at the first emergency room who misdiagnosed his condition. While I had little doubt that the physician who initially evaluated him was negligent in failing to diagnose the appendicitis, I turned down the potential claim because we could not establish causation. Specifically, notwithstanding the act of negligence, the delay did not cause injury as the patient still needed surgery to address his medical condition. Certainly, my decision may have been different had the patient suffered a medical complication, such as a ruptured appendix or significant peritonitis, between the time of the misdiagnosis and the time of the correct diagnosis. I often tell other attorneys, if buying real estate is about location, location, location; then choosing malpractice cases is about causation, causation, causation!
Any attorney experienced in medical malpractice litigation will want to know how the act of negligence caused your injury. As a potential client who wishes to pursue a claim for medical negligence, you should be prepared to provide your attorney information by which he or she can evaluate the issue of causation.