Guest Columnist

When is it malpractice? When isn't it?

'Standard of care' sets high bar for people suing doctors or hospitals


Malpractice can occur in all shapes and sizes — misdiagnoses, delays in treatment, improper techniques, etc. — and many think it happens too often.

According to the National Academies of Science, as many as 98,000 Americans die each year due to preventable errors.

There is no functioning system in place within the medical community to address this loss. It often falls to the injured or their surviving family members to take a risk and bring forward a malpractice claim, despite the challenges and expenses.

What should you do?

So how do you know if you or a loved one has been injured by medical malpractice and what should do?

When a medical provider owns the mistake they made, and they apologize for it, you can never use that admission as evidence in a future case — there is a rule against doing so. Such an apology may be enough information for you to know you should investigate the matter further.

Medical malpractice cases are highly specialized and often misunderstood.

Over the years, we have received thousands of calls from folks who may not have received what they consider “good” medical care.

They want to know if they can hold the doctor or hospital accountable for the harms they suffered. They never wanted to be involved in lawsuit and are often surprised that there is not a better system of internal oversight within the medical field.

So they seek help from our civil justice system. But, more often than not, the answer is “no,” we cannot take your case, and it usually has nothing to do with them.

Standard of care

Screening a potential medical malpractice case is not really about deciding if a person received good or bad care. Malpractice only occurs in the context of a legal case when the doctor or hospital breaches the standard of care.

This is a bit misleading because it makes it sound as if there is an easily accessible book of standards that lays out exactly how a specific procedure is to be done, and if the health care provider acts outside of those identifiable rules, then malpractice is clearly established.

Perhaps there should be such a reference book that could be used in legal cases, but there is not.

Even though medical schools, medical literature and often the internet will lay out the proper way to do a procedure or diagnose an illness, the counter argument will be that it’s not that simple — even when it may appear that it is.

Difficult to prove

There are those who believe taking on a medical malpractice claim should be very difficult. The biggest hurdle is the standard of care.

In order to prove it was breached, you are going to have to hire a medical expert to prove what it is, how it was breached, and that this breach is what caused your harms.

Because doctors and hospitals are the authors of your medical records, they are not often going to put down in your chart that their mistakes injured you.

Proving this standard exists and its breach is what injured you, as you might imagine, is very expensive.

Excluding attorney’s fees, you could be looking at more than $100,000 in expenses just to be able to tell a jury what happened. And then the decision is in their hands, not yours.

Big risk

To complicate matters, sometimes you need more than one expert for your case. For example, we had to hire three or four experts in one case. That’s a big expense, coupled to a big risk. So only the most serious injury or wrongful death cases ever see the courtroom.

This means numerous legitimate malpractice situations have no redress within the current structure.

Most attorneys who practice medical malpractice will advance the expenses on your case if they take it on, but this expense is something that will be factored in when deciding whether to take your case.

Just remember that, in large part, it is the standard of care that dictates whether you will be able to proceed with your potential case.

That standard accepts a certain margin of errors and mistakes, in part because it is a moving target defined by hired experts. In other words, the standard is not standardized, and each case will have to be carefully and individually investigated.

Pressley Henningsen is an attorney at RSH Legal in Cedar Rapids. Legal Matters appears monthly.

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