I recently wrote that, often, I get a call from a new potential Tucson or Arizona client, and one of the first things from their mouth is, "Do I have a malpractice case?" Frustratingly for the prospective Tucson client, I inevitably reply, "It depends."
Unfortunately, it is very rare for me to be able to tell a potential client during an initial interview if they have a case for malpractice. Here is why. Arizona lawyers must prove three things to win a case of malpractice. Lawyers call these three things: breach of the standard of care, causation, and damages.
I recently wrote about the issue of standard of care. That is, a patient must prove their doctor acted as an unreasonable doctor. This requires expert testimony. Standard Of Care Blog.
If an expert doctor reviews the care, and agrees the treating doctor did not comply with the standard of care of a reasonable doctor, then the next issue to tackle is what harm was caused by the doctor's mistake. In legal speak, we call this causation.
For example, we know drivers are not supposed to run through red lights. If someone does run a red light, that is negligence. If somebody runs a red light but does not hit another car, then this negligence did not cause any harm. In this example, there would be no causation (and no damages, but that is for another blog.)
Here is the challenge with almost all medical malpractice cases: healthy people don't go see the doctor. Often, it is difficult to prove what was caused by the doctor's mistake, and what was simply a consequence of the patient's original disease.
Here is an example. A patient has a serious infection that has spread to her blood. She goes to her family doctor complaining she does not feel well. The doctor makes a mistake, and he does not take some basic vital signs. For that reason, he does not appreciate how sick the patient is. Instead of sending the patient to the hospital, he gives the patient some oral antibiotics. A few hours later, the patient's family realizes how sick she is, and they take her to the emergency room. The hospital tries to help, including administering I.V. antibiotics. Unfortunately, the infection had spread too far, and the patient passes away.
For this to be a Tucson medical malpractice case, the patient and her lawyer must prove being sent to the hospital earlier would have saved the patient's life. They must prove the hospital would have recognized the seriousness of her illness, and administered the correct I.V. antibiotics. Then, these antibiotics would have been able to reverse her serious infection in time to save her life.
In many medical malpractice cases, this causation step is the hardest to prove. Many times, we will consult an expert (in this example, an infectious disease expert), and she will tell us she thinks that earlier or different treatment (in this case I.V. antibiotics) may have helped, but she can not say that it would have significantly improved the patient's condition (in this case, save the patient's life.) This is because the patient was already very sick by the time she got to her doctor, and even with great care, was facing a high risk of death or serious illness. Despite exploring all the different situations, often the expert simply cannot tell me better care would have changed the patient's fate. Without the expert being fairly certain -- with the necessary supporting facts -- that better care would have significantly changed the patient's outcome, I can't prove causation.
Sometimes, however, causation is clear. For example, in a recent case, a patient's doctor failed to order mandatory follow up tests after a scan showed a mass that was suspicious for cancer. As a result, the patient's cancer was allowed to grow unchecked for many, many months. In this case, our experts are able to form a certain opinion the cancer grew from a stage I to a stage IV during the intervening months. This growth from a stage I to a stage IV, very much harmed our client's chance of survival. In this case, we will be able to prove causation.
After we prove causation, we finally must prove the issue of damages. That is the final step of the medical malpractice analysis. I will write on this issue in an upcoming blog.