Posted by Bill Sandweg on 12 September 2022.
Sadly, I see a lot of death cases. Prospective clients come to me with questions about the death of a loved one. Why did she die? What happened to her? Most often they want to know if her death was the result of a medical mistake. One of the first questions I must ask is whether there was an autopsy or not. If the answer is that there was not, there is usually nothing I can do to help that person or to answer their questions.
Medicine is complicated. Even in a young, previously healthy person who dies unexpectedly, there may be a lot of things going on with that finely tuned organism we call the human body that make it hard to determine exactly what went wrong and why the patient died. As we age, the number of health issues increases. It is rare for a person in their seventies not to have some chronic health problems. These health issues may further cloud the question of what happened and why the patient died.
Even when the cause of death is obvious, the question of whether the death was the result of medical error may be very unclear. While there is a great deal of debate over exactly how many hospital deaths in this country each year are the result of an avoidable medical mistake, there is no question that it is a large number. I have seen some respected sources place the number around 250,000 annually while another places it at over 400,000. These are staggering numbers. If you are waiting for the hospital or the doctors to tell you that your loved one died due to an avoidable medical mistake, you will have a long wait.
In order to bring a successful medical malpractice death claim, the plaintiff must prove by a preponderance of the evidence (that is, a greater than 50% likelihood) that there was an avoidable medical error and that, had the error not occurred, the patient would have survived. There are many hurdles to overcome in doing this.
The first hurdle is the medical record. Under the best of circumstances, medical records do not tell the whole story. There is no way to record every conversation, observation or thought. There will always be gaps and questions. Of course, the best of circumstances are not always present. The medical records are prepared by the doctors and nurses who provided care for the patient. Sometimes they are prepared at the time of the care and before anyone realizes that there is something wrong. Even though incomplete, these records are likely to be accurate. At other times, however, the chart entries are prepared after things have gone to hell. These records can be suspect as there is a natural tendency for the doctors and nurses to make entries that excuse their conduct or cover it over. When a patient dies of an avoidable medical error, it is highly unlikely the chart will even hint that may have been the case much less say so.
Another hurdle arises out of the complexity of medical care and human illness. There may be a lot of room for legitimate disagreement about what happened and why. There may have been tests that could have shed light on the issues but were not ordered. There may be equivocal or contradictory test results or observations.
This is where the autopsy comes in. A patient’s family cannot rely on the record, even if it strongly supports their claim about the cause of death. The doctors and nurses making the chart entries may claim that they made a mistake about the cause of death or may say they now have more information and a different opinion. They may simply be uncooperative with the family when the time comes to testify.
Even if an autopsy is performed by the hospital, the family’s needs may not be met. The family needs a doctor who is willing to call them as she or he sees them concerning the cause of death and to cooperate with them, should they decide to bring a wrongful death claim. A pathologist hired by the hospital may not fill the bill. A pathologist who performs a private autopsy will be that doctor.
The important thing to remember is the element of time. If an autopsy is to be performed, it must be conducted soon after the death by a qualified medical examiner who knows what to do. This is a difficult time for families but, if there are questions, they must be recognized and the autopsy arranged promptly before the opportunity is lost.