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Posted in Medical Malpractice on April 18, 2017   |  by Gary Burger

Determining Malpractice

Gary: John, what are the things that you encountered in terms of folks who are aggravated or upset about what has happened to them and are trying to assess whether or not that falls into this malpractice milieu that we’ve been talking about?

John: Right. Well, it can be a challenge to determine initially whether or not the person has a claim, and the reason it can be challenging is that just by virtue of having a bad result in a surgery doesn’t necessarily mean that the doctor has committed malpractice. It could mean that the doctor has committed malpractice, but oftentimes it does not.


For example — and I think that this case is a good demonstration of this — we have a client who was operated on and the doctor inadvertently nicked her intestines, unintentionally, and at first blush she might think that was malpractice because he did not intend to nick her intestines. However, as you point out, the standard of care is the average standard of care. If you talk to any number of different doctors, they’ll say that when somebody’s being operated on in their abdomen, there are lots of organs that are all over the place and it’s difficult to operate with pinpoint precision in such a challenging environment.


But, in that particular case that I was just referencing, the doctor did not commit malpractice by virtue of nicking the intestines, but he did commit malpractice because he was very uncaring and kind of callous about all the different symptoms that developed in that particular client. Subsequently, he refused to provide her the treatment. He failed to diagnose her. He refused to provide the treatment that he needed to provide, and it were as he could have prevented all from pain and suffering right off the bat, she ended up suffering horribly and continues to suffer months afterwards. So, distinguishing between a bad result on the one hand and negligence on the other hand can be a big challenge.

Gary: Yeah, and it comes down to the questions: What did the doctor do wrong? Is that a violation in the standard of care? And, John’s correct. That nicked bowel wasn’t the malpractice, but the failure to diagnose and treat it, and trying to treat it and provide antibiotics and go on either close it or earlier provide antibiotics, and basically what the doctor had been doing is covering himself, saying it wasn’t related when it really was, and only when she got to later medical providers which she was adequately diagnosed.