EVALUATING MEDICAL MALPRACTICE CLAIMS LIABILITY

Keywords, medical malpractice, New Jersey, failure to diagnose cancer, delayed diagnosis of cancer, defenses, statute of limitations, New York medical malpractice lawyer, defenses, failure to diagnose, and proximate cause, New Jersey medical malpractice attorney .

Illness and death are sad events particularly if the outcome might have been different with better treatment.  The question is not whether treatment could have been improved, but whether there was a substantial deviation from established treatment standards- standard of care- so as to constitute malpractice or negligence.   Over 150 years ago, a court put it this way: 

"A physician and surgeon, in the performance of his professional duties, is liable for injuries resulting from the want of ordinary diligence, care, and skill. The defendant physician contends that it ought to be borne in mind that physicians never warrant their work. They make no promise, except to do as well as they can, and as well as they know how to do.  There is nothing like mechanical perfection in the healing art. The only reasonable rule on this subject—which is in accordance with the settled law in Connecticut, England, and elsewhere— is that nothing short of gross ignorance or gross negligence will subject the surgeon to damages. What man, even of skill and talent, would undertake to practice in the healing art, if some little failure of ordinary skill or ordinary diligence, or even some trifling want of carefulness, might sweep from him the whole earnings of a life of toil and drudgery? Restricted to the narrow ground of the charge, many skillful and able physicians would not escape liability a single year of their practice. "Ordinary" means usual, common. The difference between a want of ordinary or useful skill and gross negligence is essential and important. If you were to draw a line of distinction just halfway between the eminently learned physicians and those grossly ignorant, would you not hit exactly on those styled ordinary?... To say that a physician did not perform a certain operation with ordinary skill conveys a very different idea from the assertion that he performs it with gross negligence.
The defendant physician prayed the court to charge the jury that, unless the plaintiff had proved the defendant guilty of great and gross negligence in vaccinating the plaintiff, she could not recover damages.  The court told the jury on this point that if there was either carelessness, or a want of ordinary diligence, care, and skill, then the plaintiff was entitled to recover. The principle laid down by the court is entirely correct. If in the performance of the operation there was a want of ordinary diligence, care, and skill, or if there was carelessness, then the defendant physician was liable."   Berlin, Radiologic Malpractice Litigation: A View of the Past, a Gaze at the Present, a Glimpse of the Future, AJR 2003; 181:1481-1486
 

1. Nature of Standard

In evaluating a medical malpractice claim, we first look to the standard of care- is it clear or well-established.  A failure to follow up on a test with positive results may constitute malpractice.     In contrast, if a patient's symptoms are unclear or ill-defined, the failure to accurately diagnose him may not constitute malpractice.  If there was not the classical case with established symptoms, a misdiagnosis may not violate the standard of care.  We look first to see whether there was a clear standard that was violated.

2.  Source of Information about Medical Malpractice Standards

The first source of information about medical malpractice standards is a doctor in the field of care himself.  Generally another physician in the area of specialization must provide a report indicating the treating physician was guilty of malpractice.

3.  Clarity of Facts

Confusion benefits the defendant, one lawyer observed.   If the facts are disputed or unclear, it is more difficult to identify the alleged malpractice.   Generally the relevant facts should be contained in the medical records.   Cases based upon undocumented recollection can be more difficult to sustain .

Once the lawyer has evaluated liability, he may then assess damages. 

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Howard Gutman has office  in New York and New Jersey and handles failure to diagnose lung cancer medical malpractice claims.  He is the author of a book on lung cancer. 


Contact Information

Telephone
 
Howard A. Gutman, 973-598-1980 
FAX
973-598-1982
Postal address
230 Route 206, Flanders, New Jersey 07836, 
New York Office 305 Madison Avenue, Suite 449,  New York, New York 10165,
Email
Howian@aol.com

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Medical malpractice jury instruction