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Today we talk about medical malpractice law and we’ll use “The Resident” TV show for examples because … Grey’s Anatomy is way too easy. Enjoy.

MEDICAL MALPRACTICE ELEMENTS

Medical malpractice is simply an offshoot of regular negligence that has been limited and changed by state legislatures.  A malpractice action has four elements: (1) That the medical professional has a duty to the patient, (2) A breach of the duty by failing to provide a “reasonable standard of care,” (3) An injury to the patient, and (4) That the patient suffered “measurable damages.”

The important thing to remember in situations like this is that a “reasonable standard of care” for a doctor – for anyone really – is an objective standard, not subjective.  In other words, there are no excuses.  It doesn’t matter that a doctor is young and inexperienced, she still needs to provide the same standard of care that an experienced doctor would.  And it doesn’t matter that the doctor is old and has shaky hands now. 

GOOD SAMARITAN LAW

In one of the Resident clips, we see a young lady who works at the hospital – she is not a hospital patient per se.  This goes to whether the doctors even have a duty to her at all to her from a legal standpoint. The short answer is because the doctors are working and treating her at the hospital, there is absolutely a duty to provide her reasonable care.  Compare this to if the doctor was walking home with the same young lady when she collapses on the ground.  From a legal standpoint, in almost every state now, if the doctor treated her after work he is considered a Good Samaritan and is considered to have no duty to provide reasonable care and immune from suit.  Here’s the Florida Good Samaritan statute just to take a look at it.

Florida: § 768.13 states (2) (a) Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care … shall not be held liable for any civil damages as a result of such care or treatment ….

BUT in this scene the doctors are not Good Samaritans and have undertaken the care of the patient.  This leads to a duty to the patient.

The second interesting thing in the clip was that the administrator came in and stuck her nose in on the procedures the doctors were ordering.  This is something that doctors deal with everyday and the one thing that sucks about being a doctor nowadays – other than lawsuits.  The bottomline is that doctors are STILL held to a reasonable standard of care NOTWITHSTANDING insurance and money issues.  A doctor has to order tests he believes are necessary AND the hospital has to do the tests even if the hospital might never be paid for them.  Same thing goes for lawyers, I have to prep every case for trial and spend money on the case even if there’s a good chance we are going to lose and never recoup the money.  You have to do your job no matter the money issues involved and that puts a lot of stress and pressure on the modern doctor.

Finally, the administrator is not doing the hospital a favor because the hospital is almost always responsible for its doctors malpractice under the doctrine of Respondent Superior which we have done a vlog on before.  Check it out. Medical Malpractice lawsuits name the doctor and the medical facility or hospital.

WAIVERS: CAN YOU WAIVE MEDICAL MALPRACTICE

In on of the Resident scenes, the hospital is conducting drug studies in the hospital apparently.  Drug testing participants sign 10 page waivers of liability before becoming guinea pigs and that kind of leads to the question: Can you waive medical malpractice? In other words, can you sign something that says “ I want you to treat me and agree not to ever sue you for malpractice for any reason?”

Well, if that was allowed there probably wouldn’t be any malpractice lawsuits.  The law surrounding waivers is extremely complicated.  The guy who had a bad reaction on the clip was part of a voluntary drug program and so the waiver will probably be upheld because of the voluntary nature of the drug study.  Using the same logic, courts tend to uphold waivers more when procedures are elective or cosmetic – for example if you are having botox injections you probably waive the right to sue the doctor for a bad reaction and that will be upheld.

But the courts do limit them.  For example, waivers are no good for gross negligence – acts that show a reckless disregard for someone else.  A good example is our very first clip from the resident where the older doctor is trying to operate with severe hand tremors – that’s more than just a mistake, that is almost certain to lead to problems and that is “gross negligence.”

DAMAGES

And finally, in discussing medical malpractice you always have to think about damages.  The truth is that the state legislatures have made malpractice very expensive to pursue. In many states the lawyer has to hire another doctor to provide a written opinion that there was malpractice before a lawsuit can even be filed.  That costs a couple thousand to tens of thousands of dollars to get.

A longtime ago a guy came into my office with a medical malpractice claim.  His dentist had pulled the wrong two teeth.  The dentist was supposed to pull the upper and lower left molars but had pulled the upper and lower right molars.  The dentist just literally made a mistake and pulled the wrong side of teeth.  This was one of the first med mal case I had ever really had and I thought ..this is a slam dunk – literally in the report the dentist admitted he pulled the wrong teeth.  So I signed up the client and got to work.

I retained a dentist as required and paid him $2,500 to review everything and produce my pre-suit report.  As expected he said there was negligence and … here’s where it got tough, he said that replacing the teeth would be about another $3-4k for the teeth replacement and the replacement teeth would last the life expectancy of my client.  So I sent in my pre-suit demand letter and requested pre-suit mediation. 

At mediation, the insurance carrier would only agree to $3k for the teeth and an additional $6k for pain and suffering.  That was $9k which after we had paid the $2k for the report, $3k for my time, only left about $3k for my client.  The client wasn’t very happy but here is the problem: if we had proceeded to trial we were going to spend over $20k to try the case, easy.  So when you are looking at a case that has a potential verdict of anything under $50k, it doesn’t make sense to pursue it because after the attorney takes a third and the $20k in costs comes out, there’s nothing for the client.  So that’s why you need large damages to pursue a medical malpractice case.

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