A Medical Malpractice Crisis?


Is there a Medical Malpractice crisis? The answer depends on whom you ask. As a plaintiff’s Medical Malpractice attorney, it is clear that the crisis falls on the injured patient whose life has been compromised. The only harm to the doctor is in the wallet in terms of his/her insurance rates increasing. To the injured victim, the harm is quite different.

In New Jersey, a plaintiff cannot simply file a medical malpractice lawsuit. Unlike a slip-and-fall case or a motor vehicle accident case where a person can sue immediately, malpractice involves an in-depth investigation into whether or not the attorney can separate the pre-malpractice injuries from those that occurred post malpractice. Even in scenarios where it is clear that a physician committed a mistake, plaintiffs often lose. This is because every malpractice case involves a pre-existing injury. If the plaintiff is unable to establish that the injury was made substantially worse the case will fail, even if it is convincingly proven that there was malpractice.

A case example is a missed breast cancer diagnosis. A woman goes in for routine mammography which reveals a malignancy that goes undetected. A year later, the same malignancy is discovered and reported to the patient. Clear malpractice? It is, but unless it can be proved that the cancer grew or became worse, the plaintiff will lose even though it is clear the cancer was missed earlier.

As a New Jersey malpractice lawyer, it is not easy to explain to someone that a year of cancer going undetected is not actionable unless the cancer spread substantially. Unfortunately, that is the reality a malpractice lawyer faces in telling a cancer victim that, even though they could have received treatment a year earlier, there will be no case unless the diagnosis is significantly worse than it would have been had the patient received timely treatment.

A crisis? Perhaps there is a crisis. But at whose expense?

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