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The CMG Voice

The Importance of Causation

Posted Monday, March 25, 2013 by Gene Moen

Many potential clients who contact us about a case emphasize that, in their case, the medical negligence was clear or egregious. Of course, proving that a medical provider was negligent is the first step in a case. But the second step - proving causation - is often the more difficult burden to meet. In every medical negligence case, the claimant has the burden of proving that a particular act or acts of negligence caused a specific harm. In many medical negligence cases, the initial condition or harm was present before the negligence, and the claim is that the provider failed to diagnose it, thus delaying treatment.

A common example is a delay in diagnosing cancer. The cancer was present before the provider missed signs and symptoms (such as by misreading a mammogram or overlooking a lump). When the cancer is finally diagnosed, it is claimed that the delay in diagnosis and treatment allowed the tumor to grow to a different size or stage and thus caused damage, i.e., required more extensive treatment and/or worsened the prognosis. The longer the delay, the better the chance or proving that it caused the damages. In many cases, however, the negligence becomes provable only as the signs and symptoms become more obvious, and by that time it may be that the delay is too short to allow proof of damages caused by the delay.

Proving causation is often more difficult because physicians are loath to testify about what might have happened with earlier diagnosis or treatment. To them, it is inherently speculative to express causation opinions in answer to a hypothetical question. In some cases, there is a body of statistics that can help in that process. For example, there are extensive breast cancer studies showing how the various stages of a tumor impact prognosis (usually expressed in terms of five-year survival). In many other instances, that body of statistics is absent. For example, there is less statistical evidence to support a claim that a four-hour delay in diagnosing an epidural spine infection resulted in the patient’s paralysis, or that initially missing an abdominal aortic aneurysm resulted in the patient’s death.

All medical negligence cases require that all three elements - negligence, causation, and damages - require expert medical testimony. The difficulties and cost of obtaining that expert testimony is one of the reasons why many attorneys do not take on medical/legal cases.

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Why We Do The Work

Posted Friday, March 15, 2013 by Pat Greenstreet

Pat Greenstreet discusses a case that vividly demonstrates why CMG focuses on medical negligence cases. Pat describes how medical mistakes resulted in a baby suffering a profound brain injury due to prolonged labor. It is challenging and heartbreaking cases like Anthony’s that keep CMG working toward being “a trusted voice for victims of negligence.”

Why We Do The Work.
Article published in Trial News, January 2013.

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83% of radiologists fail to spot Dancing Gorilla on CT

Posted Tuesday, March 12, 2013 by Tyler Goldberg-Hoss

A new study will be published soon that found that 20 of 24 credentialed radiologists did not see a dancing gorilla placed on one of five scans they were asked to look at. In fact, half of the 24 radiologists looked directly at the gorilla, and missed it.

The larger point of the study is that even “expert searchers” such as radiologists miss things if they are not looking for them.

Here is a link to the article: 83% of radiologists fail to spot Dancing Gorilla on CT

Missing things that are there to be seen - even things a radiologist isn’t necessarily looking for - can be dangerous to patients in certain circumstances and give rise to claims for negligence.

So called “incidental findings” - unanticipated discoveries in the course of testing or medical care - are golden opportunities for radiologists to catch things no one was looking for and that hadn’t yet produced symptoms. When such findings are missed, patients can lose a chance to catch something before it becomes a much bigger problem.

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Five Myths of Medical Malpractice

Posted Monday, March 11, 2013 by Gene Moen

A recent article debunking the “myths” about medical malpractice appeared in a surprising publication: Chest. This is a journal published by the American College of Chest Physicians. Although the myths listed are those commonly held by physicians, they are also widely held by the public. That means those same myths are solidly in the minds of jurors when they decide a medical negligence case.

Over the past several decades, insurance companies and medical organizations have been engaged in a campaign of misinformation and untruths about medical negligence cases. The campaign usually involves an effort to impose restrictions and limits on medical cases, such as a cap on damages or limits on attorneys’ fees. Regardless of whether the campaigns are successful in enacting legislation, the effect has been to negatively influence the public and juries about medical negligence cases.

It has been, in reality, a massive - and, unfortunately, successful - case of jury tampering. This has resulted in juries who believe that many, if not most, medical negligence cases are frivolous, that the plaintiff is playing “litigation lottery,” that plaintiff’s verdicts are driving up health care costs and insurance rates, and that the lawsuits are driving doctors out of business or forcing them to move to other states.

None of this is true, as the Chest article points out, but it is a reality that all plaintiffs and their attorneys must face when they bring a medical negligence lawsuit. It is not an even playing field.

The article is available here:

American College of Chest Physicians: Five Myths of Medical Malpractice

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Failing to properly monitor blood thinning after surgery an all too common error.

Posted Thursday, March 7, 2013 by Tyler Goldberg-Hoss

Blood is naturally able to clot, and that’s a good thing. Otherwise, our cuts and scrapes wouldn’t stop bleeding, and our bruises would keep getting bigger and bigger. But sometimes it’s a very good idea to hinder this clotting process, particularly in people at an increased risk of developing clots that can break off and travel to the brain, lungs or heart. In these people, blood thinning drugs are used to prevent such things from happening. However, devastating errors can occur when patients are not monitored on these medications, or not given these medications at all when they need them most.

It appears Mr. Clemons’ family is alleging that Clarence, saxophonist for Bruce Springsteen’s E Street Band, is alleging this very thing.

E Street Band saxophonist’s death due to medical negligence, claims family

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