Reviewing Potential Malpractice Cases

 

As a Legal Nurse Consultant I am frequently asked to review potential medical malpractice cases brought by patients and families.  Often it is because there has a bad outcome to a person’s healthcare and even sometimes because people are upset about the way they were treated by health care providers and hospitals.

But bad outcomes alone are not enough to proceed with malpractice.  All four of the elements for tort negligence must be met before proceeding for a claim of malpractice.  These elements include:

•  Duty must have be owed to a patient by a healthcare practitioner charged with that patient’s care.  The doctor-patient relationship is a common example of a situation where that duty would exist.
• Breach of Duty –The healthcare practitioner with the duty of care for that patient must have failed in his/her duty by not exercising the degree of care or medical skill that another healthcare professional in the same specialty would have used in an equal situation. 
• Injury—There must be solid proof that the breach of duty by the healthcare practitioner caused the patient’s injury. 
• Damage – The patient must have suffered emotional or physical injury while in the care of the healthcare practitioner. The injury can be a new one, or an aggravation of an existing injury.

When reviewing a potential medical malpractice case, a Legal Nurse Consultant must be able to identify all four of the components for tort negligence in order to determine if this would be a meritorious claim.  

Families often seek initial medical-legal counsel after the death of a loved one, saying “they didn’t do enough to save my mother, dad, etc…”  This is where we focus on the second components for tort negligence.  We review the medical literature and obtain expert review by similar physician specialists or subspecialists to determine if the care was reasonable and if a reasonably prudent practitioner would have done the same. 

There are sometimes situations where a medical provider had a duty and may have breached that duty which caused injury to the patient but there were no damages or at least minimal damages.  An example of this might be a post-operative infection.    Another example may be an intra-operative complication such as a nick to the bladder, which was recognized and treated post-operatively.

Frequently I am asked to review cases in which there was a delay in diagnosis.   This is where we focus on the third components for tort negligence.  While there was duty and maybe potential damages as a result of the delay, it is more challenging to prove that a delay was causative to the injury.  This is especially true in cases where there is a long latency or long course of disease progression, such as in some forms of cancer like cervical cancer or prostate cancer.

Lastly when we review a case in which there may be damages, a Legal Nurse Consultant must also make sure that the other 3 elements for tort negligence are present.  These are often the cases where someone dies of a fatal disease or complications from a treatment (chemotherapy for example) but no negligence on the part of the medical provider.  Another example is when a loved one dies of a massive heart attack while in the hospital and the family wants to sue, but there is no breech in the standards of care

If you have a case you would like reviewed, please contact me directly.