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August 3, 2017 | Gary Burger

Clear Medical Malpractice Violations

Gary: I’m Gary Burger of Burger Law. I have Joel Beckwith and John Burns with me today. I thought we’d talk a little bit about medical malpractice. So, we represent people who are injured because doctors or medical care providers violate the rules of the road for doctors or medical providers, the standard of care, or they commit negligence, different ways to say the same thing.

Doctors, and nurses, and hospitals are in the business of taking care of patients, and there are established rules and guidelines for doing so. When doctors violate those rules, and that injures someone, then they have a medical malpractice case.

Did you know that hospital errors are the third leading cause of death in the United States? Doctor errors happen, and we all like doctors, and that’s one of the reasons why medical malpractice cases are very difficult is no one wants to admit fallibility in their doctors, but doctors, and nurses, and nursing homes, and hospitals do make mistakes and do injure people, and there’s a variety of those types of claims.

So, to try to see whether or not you have a claim, the first thing you want to do is try to figure out what did the doctor do wrong. Did the doctor violate a clearly established protocol or rule that caused you damage? And if they didn’t, there’s no medical malpractice claim.

We’re very careful about the cases we take. We only take cases where there was a clear violation in the standard of care and that clearly caused damages. The causation part of it is the second and sometimes the most important part of the case. If I break my arm and I go to an ER today and they don’t diagnose it, but if I go to an ER tomorrow and they do diagnose it and treat it, I have no medical malpractice case because the one-day delay in treatment did not cause me any damage. The same is true with failure to diagnose cancer cases. If cancer isn’t diagnosed on day one but is diagnosed on day seven, then that six-day delay very likely did not decrease the chance of survival of the cancer patient, so there are those issues too.

And then you have things that happen attendant to every medical procedure like infections or other types of things. If you’re not able to say those are violations in the standard of care, then you don’t have a case. But, let’s be clear, if we have doctors who violate the standard of care for treating you and that caused you damage, then you do have a case, and that could happen in a variety of circumstances.

Hospitals are required to do fall risk assessments. They take care of folks who can’t ambulate, and if you fall at a hospital, sometimes, often it’s because they did not do an accurate fall risk assessment, give you the protocols like walkers, canes, bed rails, put a fall risk assessment notice on you, give you a buzz light to go to the bathroom. There are various orthopedic surgeons who don’t put a pin — like they’re supposed to — in a piece of metal to help fix your femur, or a doctor does not correctly diagnose an infection in you and in an emergent situation doesn’t diagnose sepsis or septic shock in a patient — the emergency room start applying antibiotics right away, which is the standard of care — and delays that and caused a person the delay of sepsis or septic shock. There’s a great lack of knowledge and lack of attention to sepsis and sepsis infections. Sometimes, people can have acute eye injuries that are causing degradation of eyesight or blindness and those need to be attended to right away. Some of these cases are examples we have on our website at about the types of cases we’ve been successful on in the past.

What if someone does surgery and leaves a laparoscopic sponge in you and doesn’t take that out and you have endometriosis or you have adhesions in your body or you have problems from that? There’s a whole host of problems that can arise from that, and we get a lot of calls on that, and we parse out and try to help folks with that.

Joel, when we get calls in for people and talking with them, what are some of the techniques and some of the examples you have about trying to parse out whether or not someone has a good medical malpractice case or a medical malpractice case that we would help with?

Joel: Well, the first thing that I do when I talk to a client is I try my best to empathize with their condition. We get a lot of sick clients that are sick potential clients that call, they’re hurt, they’re upset, emotionally or physically, and so they call and they want to know if they’ve got a claim, if the doctor did something wrong, so fleshing out exactly what the doctor did wrong can sometimes be tricky, and sometimes the client or prospective client doesn’t always have an answer for that.

They don’t know that the doctor actually did anything wrong, and when you asked them enough questions about their status, their condition, prior medical issues, you kind of end up finding out that, well, the real issue is the doctor was rude, and the doctor was a jerk, and the communication to the patient was not ideal, that they didn’t receive the best care, but as we all know that that doesn’t make a case for medical malpractice. It has to be more than that.

And so, I guess another example would be kind of, you start talking to the client, you ask them about the facts and circumstances, and you find out that what they’re really upset about is a condition that they had or currently have and the doctor didn’t cause that condition. That’s the condition that they had way before. It’s tough because you want to empathize, you want to let them know, “Hey, I’m sorry about how you feel and all that, but making a medical malpractice claim based on these facts and circumstances isn’t something that we could pursue.”

Gary: Do you have a malpractice claim if the doctor was a jerk or had bad bedside manner?

Joel: No, that’s not the basis for a medical malpractice claim.