If you can prove malpractice occurred, you may have a case. If you can’t, you don’t. Certainly, medical negligence occurs every day in every state in our country. For a variety of reasons, such negligence never rises to the level of a civil lawsuit for money damages. Proving malpractice is only one part of the battle to secure just compensation from a jury.
Perhaps the negligence occurred too long ago? If so, I’m afraid there are time limits on claims.
Perhaps there was negligence but there was no harm caused. Technically, we don’t assist our clients filing lawsuits for negligence, but rather the harm caused by the negligence.
Perhaps you have a clear memory of the negligence occurring, but the medical records say otherwise (and presumably the negligent health care provider is going to corroborate non-negligent behavior). He said, she said cases – and the risks of going to trial and having the jury believe the health care provider (and medical records) – are difficult for any attorney to justify taking on.
Perhaps you have no memory because you were under general anesthesia in a surgery, and you wake up to find something horrible has happened? You ask your surgeon, and while she expresses sympathy for the complication that has occurred, she is light on the details of why it occurred. “This is, unfortunately, a risk of the procedure” she says.
You request your records to see if they can shed any light on what happened. You read the operative note, and it doesn’t mention any complication, or anything untoward occurring at all. If you had experience reading such records, you’d recognize that most of what is in there is from a template created years prior.
You are fortunate enough to know a doctor who performs the same surgery. You ask her, and she says “Boy, this has never happened to me, and it sure looks like something negligent occurred.”
“But what?” you ask.
“Well, it’s impossible to say. I may have some theories, but you’d have to ask the surgeon.”
Well, the surgeon won’t talk with you anymore. And you tried to reach out to the other health care providers in the operating room if they remember anything, and they haven’t responded to you.
So you go back to your surgeon friend and ask “Well, isn’t it enough that I was harmed? I mean, can this just happen?” And unless the injury is so out of bounds (like operating on the wrong leg), the surgeon will likely be forced to say “Yes. Although it’s never happened to me, I suppose this could happen and it is not because the surgeon was negligent.”
Perhaps the surgeon failed to take a required step in the surgery and caused the harm. Perhaps the surgeon thought she used the nerve monitoring machine correctly to identify a nerve that needed protecting, and didn’t. Perhaps she slipped when she meant to cut one thing, and cut another.
Without proof, without some evidence that supports a particular action or failure to act that caused the injury, you cannot hold your surgeon accountable.
Even if your surgeon friend says “It was probably negligent, but I can’t say for sure.” The flip side of that is: “It’s possible this injury occurred in a non-negligent way.”
And I don’t know how you win those cases. Because what you can expect a jury to hear at trial (if you can get that far), is your expert saying “It was probably negligent, but I admit it could occur in a non-negligent way.”
And from the defendant surgeon, the jury will hear “I didn’t do anything wrong.”
And from the defendant’s surgeons, the jury will hear “I see no evidence that the defendant did anything wrong.”
And what’s a jury to do with that? Find that the defendant surgeon is lying? I suppose with the right facts, you might convince a jury of that. But in the vast majority of cases, the significant risk of losing such a claim prevents malpractice attorneys from taking on such cases.
