Medical Negligence Cases:
When is it appropriate to sue a healthcare provider?
By: David Duce
I represented my first victim of medical negligence over 20 years ago. Since then I have reviewed dozens of cases a year and represented many patients who have been injured by the negligent acts of their healthcare providers. I have recovered compensation for families who have seen loved ones die from undiagnosed cancer, negligent delivery of their baby, surgical errors, and neglect by their nursing home. Others have survived the negligent treatment they were given, but have been seriously and permanently damaged by their doctor’s choice of treatment. I have written and lectured on how to handle medical negligence cases during my time as chair of the Professional Negligence Section of the Washington State Association Justice. Since I regularly receive phone calls from people asking me if they have a valid medical negligence suit, I hope this discussion is helpful to those who may wish to better understand some of the issues involved in these cases.
Medical negligence cases fall into a specialized area of the law that bring with it unique rules and considerations. Each case must be individually evaluated by an attorney who has experience handling these types of cases. However, medical negligence cases have many similarities to car crash cases and the comparison can often times help in understanding the elements required for a legitimate medical negligence case.
Most drivers understand that when they undertake to drive a vehicle on the road they must follow the established rules of the road or they could seriously harm themselves, their passengers, or others who are using the road way. These rules of the road are based on experience and common sense. Many times the rules are put in place after we become aware of a serious tragedy. The requirement that we keep children in booster seats much longer now than we used to is an example of that type of safety rule. If everyone followed these safety rules all of the time there would be very few injuries to people on our roadways. Doctors also have rules that they must follow when it comes to treating their patients. Medical negligence cases are based on the violation of one or more of the “rules of the road” for a doctor or another healthcare provider.
In a car crash case, in order to collect compensation for a victim of a crash, the victim must show that the collision was caused by another driver’s failure to follow one or more of the rules of the road. We handle cases every day where people are injured because someone has:
- run a stop sign
- attempted to merge into traffic without yielding the right of way to someone else
- become distracted and lose track of other traffic around them
- fallen asleep at the wheel
- driving while impaired by drugs or alcohol
- not left enough following distance between them and the car in front of them under the circumstances
For doctors, normally the need to follow rules starts with their diagnosis of the patient. A patient will come to the doctor with certain signs and symptoms. A doctor is expected to have sufficient training and experience to begin to narrow down the possible causes for a patient’s complaints and then order the correct lab work or diagnostic studies to confirm the cause of the patient’s illness, or refer the patient to another more specialized doctor who will be able to do so. A doctor is expected to rule out the most dangerous potential reasons for the patient’s symptoms first since many times a failure to act quickly to treat a serious condition can kill or severely harm that patient. If a doctor does not take the appropriate diagnostic steps they can miss a serious problem or they can treat a patient for a condition that the patient doesn’t actually have and subject a person to unnecessary risk. Errors like this during the diagnosis phase of treatment can be the source of a medical negligence case.
Sometimes the doctor’s diagnosis is correct, but the treatment choice made by the doctor is wrong. This is like driving the wrong way down a one way street; the treatment given injures the patient by depriving them of the correct treatment at a time when it can do them the most good. Sometimes this error is caught and corrected in time; unfortunately sometimes the opportunity to provide the correct treatment is missed forever. Recently I was able to obtain a significant settlement for a patient’s family in just such a situation. The terms of that settlement require that I keep the names of the parties involved and the amount recovered confidential; however, this patient’s story will illustrate how a doctor can be found negligent even after they make a correct diagnosis. The patient, whom I will call Debby, was a 54-year-old married woman with four adult daughters. She had not experienced any significant health issues over the course of her life. She had been going to the same family practice clinic since the 1970s and saw her doctor on an as-needed basis; only a handful of times over the past decade. In December 2006 Debby began feeling unusually fatigued and thirsty; she was also experiencing muscle cramping in her legs that would not go away. She made an appointment to discuss this with her doctor and the doctor correctly ordered lab tests which included a check of her blood sugar level. When the lab report came back, the test showed that Debby’s blood sugar was nearly 600 (that is more than five times the high end of the normal range for a healthy patient). The doctor correctly concluded that Debby was suffering from diabetes. This was a new diagnosis for Debby for which she had not received any treatment before and her condition was obviously out of control since the lab results were so far beyond the normal range. Debby’s doctor had to decide what to do for her in this situation. A reasonably prudent doctor who was following the safety rules for patients in this condition would have sent Debby directly to the hospital where she could be given intravenous fluids and insulin under careful monitoring until her condition stabilized. Unfortunately in Debby’s case, her doctor chose instead to send Debby home with prescriptions for slower acting medications designed to help keep a patient’s blood sugar level normal after they are out of danger, the doctor told Debby to take the medications and follow-up at the clinic a week later. To make matters worse, the doctor told Debby that the new medication she was being given might make her feel nauseous. Over the next several days, Debby faithfully took her new medication. She did feel nauseous and generally sicker as each day passed. Rather than contacting the doctor or going to the hospital herself as her condition declined further, Debby assumed that her worsening symptoms were the result of her body’s adjustment to this new medication; thus, she kept taking the medicine while she waited for the side affects to go away and, if they didn’t go away by her next appointment, she would talk with her doctor about it then. Sadly, the medications given to Debby are so slow-acting that they do not treat someone with a sudden spike in their blood sugar such as is sometimes the case with newly diagnosed diabetes. Not only are the medications slow acting, but they also dehydrate a patient and increase in the acid content of the patient’s body fluids. Finally the sixth day after Debbie’s doctor placed her on these medications, and the day before her scheduled follow-up appointment with her doctor, Debby couldn’t get out of bed. Her husband, realizing the serious nature of her condition, called 911 and an aid car came to their home and rushed her to the hospital. The doctors at the hospital worked on her aggressively for several hours but were unable to save her life. She died in the hospital from the affects of her uncontrolled diabetes.
Because Debby’s doctor did not follow the rule about sending a patient with newly diagnosed diabetes and skyrocketing blood sugar to the hospital where they have the ability to quickly and safely bring the blood sugar under control, we were able to convince the doctor’s insurance company to pay a significant sum of money to her surviving husband and adult children for their loss of the companionship of this wonderful woman.
In addition to verifying that the doctor did not follow one or more safety rule(s) for a medical negligence case to be valid, we must connect the patient’s injury or death directly to doctor’s failure to follow one of the rules. This doesn’t always need to be the only cause of the harm, but it must be a cause of the harm. Just as there are drivers who do negligent things and get lucky, i.e., they don’t hit anyone despite having run a red light, there are times when doctors don’t follow the correct rules or guidelines in treating a patient, but they get lucky and it doesn’t hurt anyone. For example, a negligent doctor may fail to read an x-ray correctly and as a result not inform a patient that they have a broken rib. In time the rib heals fine on its own without any treatment and the patient suffers no additional harm as a result of the doctor’s error (remember the patient already had the broken rib before they saw the doctor). In such cases there would be no basis to bring a claim. This case would not be decided on the basis of whether or not the doctor was not negligence, for she surely was, but the case would not result in a recovery to the patient because the negligence was not the cause of any additional injury.
If you or someone close to you has suffered a serious injury or died as a result of what you believe may be the failure of a healthcare provider to follow the correct medical standards, rules, or guidelines, you should seek a consultation with an attorney experienced in handling medical negligence cases promptly. Reviewing complicated medical files and obtaining the necessary input from respected medical experts can take several months. Because there are strict timelines that need to be followed with respect to pursuing a medical negligence case and the law imposes a three-year time limit for a victim to commence such a suit in most situations, it is wise to receive legal advice early. I speak regularly with well-respected doctors, some of whom are nationally and internationally recognized leaders within their specialties, about my client’s cases. These resources, together with my years of experience in handling these cases allow me to provide the legal evaluation necessary to advise victims of potential medical negligence of their rights in such situations.
