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Medical Malpractice & Standard of Care

By: Attorney Andrew M. Rockman

In a recent article in the New York Times, the author pointed out that getting along better with the patient and being more informative about what is going on, would lead to fewer lawsuits. The basic premise was that when one is being courteous to another, it is hard to stoke up the anger or drive to file suit against that person, if they cause you injury. The problem with the article is that it misses the point of how such lawsuits should be decreased.

It is common sense and humanity to treat patients fairly, openly, and honestly. More often then not most doctors do that within the confines of varying personalities.

The true problem is whether or not the doctors are following proper guidelines as to what should be done for a patient. Those guidelines fall under the heading of the “standards of care”, that must be recognized by all doctors in their chosen field of medicine, in terms of evaluating and responding to the needs of the patient.

The expressed concern is that doctors order too many tests, running up the costs of medical care, supposedly not truly reflecting the needs of the patient, but rather the doctors own desire to protect himself from suit. Since the insurance industry winds up, frequently, paying the bill for those tests, it is not a difficult stretch to imagine that some of this thrust to lessen the need for tests, comes from the very industry that has to pay for them.

As in many fields, there are standards of care: Rules and ways of doing things that are known within the industry to be the proper way to deal with a situation. In medicine, there are standards developed over time as to what is the proper path for evaluation and treatment of a particular patient with an identifiable set of medical problems and symptoms.

There is a little bit of myth in all of this, based upon the assumption that a lawyer will simply file suit when there is a bad result and look for tests, that by hindsight, might have made the diagnosis. Any Lawyer trained in the field, knows that the correct approach is to first, evaluate whether or not there was a failure to do what the applicable standard of response required and then evaluate whether that caused an injury serious enough to support the often substantial time and expense of a malpractice suit. The lawyer knows a hindsight available test does not automatically dictate, what tests were required by the presentation and developing condition of the patient.The reality is, there are known standards of care and Doctors must know what should be done to properly evaluate what is going on with their patient. The standards do not require excessive testing. They require the tests that Doctors have learned provide them with the type of information they need to evaluate their patient and lead him or her to correct treatment. Extra tests and extra procedures are only extra if they are beyond what the recognized standards of care would lead a doctor to pursue. 

Contrary, to what might be believed by some, qualified lawyers, knowing what medical malpractice is and what it is not, do not search medical books to find a test that could have made a diagnosis, then blame the doctor for not pursuing that test. The question is what does a reputable doctor using recognized medical sources say is the required path to properly understand what is going for a patient, so she or he can be helped, within the standards of care in any particular branch of medicine.

No question courtesy or being informative will make less likely the desire of some patients to pursue a doctor, even if the doctor has committed medical malpractice. In many situations that may very well be an appropriate path for all concerned, assuming the patient has not been seriously hurt and there is a legitimate argument that what happened is merely a recognized complication of that field of medicine that is still perfecting itself, as are most of them.

However, when a patient is faced with a very serious injury or permanent disability resulting from what a doctor did, the courtesy or information provided by the doctor does not in anyway lessen his or her responsibility to the injured patient. That courtesy in no way corrects a situation where the doctor failed to recognize what the standard of care required of him or her.

More to the point, when a doctor or medical care provider in fact malpractices and knows it, the break down in the system occurs elsewhere. That break down occurs when the insurance carrier searches every book and every nuance to try to excuse what the doctor did do or did not do, in violation of recognized medical standards. They know what those standards of care are. The problem is the insurance carrier that must own up, economically, for the damage caused by the doctor, fights tooth and nail to try to construct as many hurdles as possible to prevent the patient from being successful. That breakdown in the process is what fills the Court’s and creates prolonged and expensive litigation, where an honest dealing with what was done could often result in an early, less expensive resolution of a claim. The patient might very well accept a lesser amount for what was done to him, rather then the need for even more, when presented with increasing expense and angst, over a prolonged process that seeks contest where there is no contest and raises disputes where there are no disputes.

Admittedly there are some cases with an honest disagreement as to what the appropriate medicine was. Those are the cases that are litigated, with a jury of peers making the decision after hearing all sides’ presentation of both facts and medical opinions. However there are more than a few medical malpractice cases where the practice of substandard medicine is known and clear, yet the battle wages on as the insurance carrier tries to walk away from responsibility.
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