Posted by Bill Sandweg on 05 July 2021.
Medicine is an art, not a science. There is far more that we do not understand about the human body than we do understand. When you receive medical treatment or undergo a surgical procedure, no one makes you any guarantees. Doctors hope for a good result when they treat you but everyone understands that the actual result may be far less than what the doctors were hoping for. This has a definite application in medical malpractice cases.
There are two main elements of proof in a medical malpractice case. The first is that the health care provider did something wrong. She or he delivered care which was substandard. The second element is that, as a result of the substandard care, the patient suffered an injury, which would not have occurred in the absence of the substandard care. This is where the concept of the bad result comes into play.
If you are going to make a successful medical malpractice claim, you must prove that your injury was not just a bad result, but was the result of substandard care. This is often a very difficult thing to prove. Why is that?
The first and most important reason is that medicine is complicated. Members of the jury are almost always lay people with little to no background in medicine. At trial they are going to hear from competing experts for the patient and the health care provider. The patient’s expert will testify that the patient’s injury was the result of substandard care. The provider’s expert will say just the opposite. Understandably, the jury may be completely befuddled by these competing opinions. They can’t both be right. Which one should they accept as true?
The problem for the patient is that the judge will instruct the jury that the patient has the burden of proving “by a preponderance of the evidence” that the injury was the result of substandard care. “Preponderance of the evidence” means the patient must prove his or her case is more than 50% likely to be true. The judge will tell the jury that if they conclude the case is a tie and that the experts were each believable, they must find for the defendant provider.
A second significant problem is that there are certain conditions which are considered to be “risks of the procedure.” A “risk of the procedure” is some adverse consequence, which can occur even if everyone does everything right. For example, in a laparoscopic procedure in which surgical instruments are inserted into the abdomen, one of the risks of the procedure is bowel perforation. Even if the surgeon is the best in the world and does everything right, sometimes one of the instruments inserted into the abdomen will puncture the bowel. This is an injury which occurred even though the care was good. Infection is another risk of virtually every medical procedure. Even if everyone does everything right, a certain number of patients will get some type of infection after a surgical procedure.
If your injury is one of those considered to be a risk of the procedure, your chances of winning are even less than usual. Just because something is a risk of the procedure does not mean that, in your case, it was not caused by substandard care. It does make it a lot harder, however, for the jury to find that the injury was not just one of those things which happens even when everyone is careful. This is why experienced malpractice attorneys usually will not take infection cases; it is almost impossible to get a jury to find that an infection was the result of substandard care. It can happen but the stars must be perfectly aligned.
Furthermore, while the patient’s experts are limited to testifying only to things which are more than 50% likely, in order to carry the patient’s burden of proof, the provider’s experts get to testify to possibilities that may only have a 1% or 2% chance of being true. This is another substantial advantage for the defendant provider who can flood the jury box with possible causes for the patient’s injuries, which are unrelated to the provider.
As you can see, human nature, human anatomy and the limits of our knowledge all conspire to make it difficult for a patient to prove that his or her injury was caused by substandard care. This is one of the reasons why doctors win 85-90% of all medical malpractice cases that go to trial, even when the facts are strong for the patient. The doctor tells the jury that the patient just got a bad result and the jury, try as they might to do the right thing, accepts that testimony. Without a very strong case with clear evidence and a serious injury, a patient does not have much of a chance in court.