Frequently, 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. This and several other blog posts will talk about these three elements.
First, the doctor must have acted unreasonably. That is judged by what other doctors of that type or specialty would do under the circumstances. In lawyer speak, we call this whether the doctor met the "standard of care." Most of the time, I, as a lawyer, don't know what a doctor would do under the circumstances. That is, I don't know the standard of care. For example, I don't know what a reasonable obstetrician would do when her patient has a suspicious breast lump that shows up on a mammogram. I don't know this because I did not go to medical school, and I have not treated women with breast lumps. (Actually, I do know this one because I have handled this type of case many times, but lets pretend I don't!) So, I have to get the potential clients medical records and talk with a doctor in the same field as the potential defendant, in this case a gynecologist, and ask him or her what should be done in this circumstance. This doctor is called an expert witness. An expert witness is necessary to tell a lawyer whether the treating doctor met the standard of care.
In many cases, this is the end of the evaluation. This is because, most of the time, the treating doctor did not commit malpractice. Rather, a bad outcome, in most occasions, happened because medicine is still a very complex science. Much more times than not, something unpredictable occurred. That is not malpractice. So, when the expert doctor reviews the patient's records and tells me that the treating doctor did not act unreasonably, but this is an unfortunate complication that sometimes occurs, then I have the tough job of calling the client and explaining this to them. (More on these conversations in another blog post.)
Other times, the expert doctor reviews the medical records tells me, "Well I would not have done it this way, but this was a judgment call." This is the other tough thing about malpractice cases. Often what a reasonable doctor would do is not cut and dry. It is not written down in a book. There is a range of how a reasonable doctor should act. Often, I am told that what the treating doctor did in this particular case is acceptable, but there are better ways to go. These are the really hard cases to tell the potential client. It is always hard to tell someone that, well, your doctor did not do what was absolutely best, but it was good enough under the standards of the profession. That is a tough pill for somebody who has been injured to swallow.
In a rare case, the expert will tell me that the standard of care requires certain action, and the treating doctor did not do what was required. That is malpractice. For example, in our example about woman with a breast lump that shows up on mammogram, the standard of care requires some sort of follow up: a repeat mammogram in a short period of time, more imaging studies (like an MRI), or a fine needle biopsy. If the doctor did not take these steps, then, likely, he or she acted unreasonably. Put in legal terms, this doctor did not meet the standard of care.
These types of issues come up in many types of medical care. For example diagnosis of cancer, treatment of emergency illnesses, infections, strokes, heart conditions, deliveries of babies, or bone injures are common areas of concern. But, for each different type of medical issue, the process starts with the same question, "did the doctor act unreasonably?"
If the answer to this question is, "yes," then, I as a lawyer, move on to analyze the issues of causation and damages. I will write about these subjects in a later blog.
If you think you have been injured as a result of the malpractice of a Tucson or Arizona doctor, please contact us. We have successfully handled the most complex medical malpractice cases, and we can tell you whether you have a malpractice case. The consultation is free, and we understand the how difficult it is to take this step when a doctor you trusted caused harm.