Not infrequently we receive calls from potential clients who believe they have a malpractice case, in part because a later doctor told them malpractice occurred, suggested they call a lawyer, or otherwise implied that the care they had received was substandard.
Certainly, when a doctor tells you this, it is an indication that a health care provider did something wrong. However, there are many additional factors that determine the viability of a malpractice case. Factors that the doctor, well-meaning as he or she was, likely did not consider when making that comment.
First, telling a patient that a previous doctor did something wrong is very different than telling a lawyer. Oftentimes, when such statements are made, they are in the context of providing empathy to the patient, or otherwise explaining what happened.
It is my experience that the story or statement changes once a lawyer is actually involved, often understandably. When I attempt to contact that doctor to get the same or similar statement, oftentimes I am stonewalled by the doctor’s employer’s risk management office, or my phone calls or emails are not returned. Calling out a colleague to a patient in his or her hospital bed is one thing; doing it with an attorney, or in a deposition, or at trial in front of the doctor and the jury is much different.
Second, while doctors may have an idea of what constitutes malpractice, they often haven’t taken the time to fully review the care in question, including all of the data available to the alleged negligent doctor. There may be another side of the story.
Further, while doctors serve as expert witnesses in legal cases, and testify about whether or not care was negligent, typically there are doctors on each side telling different stories (including doctors defending the care in question by testifying that it was reasonable). In such circumstances, juries determine malpractice based on that testimony, not the doctors.
Third and finally, while the doctor may have just told you that you received negligent care in the past, that is only one part of what makes a successful claim. Another big piece is called “causation” – that is, what did the negligent act cause? In my experience in these circumstances, this does not factor into the thought process of a doctor telling you to call a lawyer. Unless you can prove not only malpractice but also that the malpractice caused the injury (and the injury is significant enough to justify the risk and expense of litigation), you do not have a viable claim.
If a doctor tells you to call a lawyer: call a lawyer. That is certainly a hint that wrongdoing occurred and you may have a case. But do not be surprised if the lawyer or lawyers you speak with don’t take your case for one or more of the above reasons. Reasons the well-intentioned doctor likely didn’t consider when he or she made that statement.
