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What makes a good case?
A: There are two basic elements to a good medical malpractice case: (1) a deviation from accepted medical standards; and (2) harm caused to an injured victim as a result of the malpractice (also known as causation).
Both factors are equally important in our analysis of a medical malpractice claim. Let's start with a common example: Client "A" injures her leg in a fall and is taken to the hospital where x-rays are taken on the injured leg. The radiologist interpretes the x-ray as normal, when, in fact, there is a fairline fracture of the kneecap (patella). Client "A" is discharged from the hospital and given a clean bill of health with no restrictions on her physical activities.
Days after the hospital visit, Client "A" continues to complain of the same leg pain that she had after the accident and she returns to the hospital. X-rays are taken at the hospital and the physician informs Client "A" that she has a fracture of her kneecap. Further investigation reveals that the X-rays taken days earlier on the day of the accident also revealed the fracture of the kneecap. Client "A" grabs a phone to call a lawyer for her malpractice claim.
What is our analysis of this common fact pattern? Beginning with the first factor, it is clear that the radiologist failed to correctly interpret the x-ray at the first hospital visit and committed a deviation from accepted medical standards. Thus, question #1 of the analysis is "YES" and we move to the second question.
The second question in the analysis is whether the radiologist's deviation from accepted medical standards caused harm to the patient--this is called "causation" by lawyers. If the fracture of the kneecap remained the same between the first and second hospital visits, then there was no harm to Client "A" from the misdiagnosis by the radiologist at the first hospital visit. In that case, causation cannot be proven and the case lacks merit.
If, on the other hand, the fracture went from a non-displaced fracture to a displaced, comminuted fracture between the hospital visits, then the radiologist's failure to correctly interpret the X-ray resulted in harm to Client "A". In that case, it can be proven that the radiologist's deviation from accepted medical standards caused a worsening of the original injury and hence, causation can be established. The case has merit as long as the injury is significant enough to merit a lawsuit.
Do not assume that simply because there is a clearcut deviation from accepted medical standards that a malpractice case has merit. Often, the second factor, "causation", is more difficult to establish than a deviation from accepted medical standards. We evaluate the first (deviation from accepted medical standars) factor and second factor (causation) in our analysis of every new medical malpractice claim. This is how we determine whether a new case has merit.
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John H. Fisher
130 North Front Street
Kingston, New York 12402-3058
Phone: 518.265.9131
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John H. Fisher
130 North Front Street
Kingston, New York 12402-3058
Phone: 518.265.9131
Fax: 845-331-2004
Toll Free: 866.889.6882
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