Question: What is the most likely defense to your case?
Answer: There are two common defenses to a malpractice case. First, that the bad outcome for you was an “unavoidable complication” and second, that you are at fault for failing to follow the doctor’s orders.
The first most common defense argument is that the bad outcome for you was an “unavoidable complication” of the surgery or medical procedure. Let’s say you go the Red Cross to donate blood. The needle is injected in your arm and after several attempts to find a vein, you begin having pain, swelling and numbness where you were poked with the needle. Days, weeks and then months pass and the swelling and numbness doesn’t go away. A year later you’ve still got the symptoms and you look for answers.
The likely defense is that your nerve injury was an “unavoidable complication” of the blood draw. While a nerve injury is rare and happens in less than one percent of all cases, it is an unavoidable complication. The defense will point out that you signed a consent form acknowledging the risk of a nerve injury before the blood draw and you signed the form and you chose to accept the risk of the injury. Exhibit “A” in your case will be the “informed consent” that you signed.
You should take a close look at the informed consent document that you signed before the procedure. If the informed consent document lists the injury as an unavoidable complication, you now know what the defense to your case will be. The doctor’s defense will be that you were informed of the risk of injury, you accepted the risk when you signed the informed consent document and the bad outcome was a rare risk of the procedure that was unavoidable.
The second most common defense argument is that you are responsible for the bad outcome for failing to follow doctor’s orders. Let’s say you visit your primary care physician with the complaint of the sudden onset of a severe headache and is, in fact, the worst headache you’ve ever had. The sudden onset of the worst headache in your life can be a warning sign of a bleed in your brain that requires emergency medical treatment—it’s called a thunderclap headache and can be a sign that an artery in your brain is about to burst.
Your doctor does no testing and simply tells you to go to the Emergency Room if the severe headache returns. The doctor writes in your medical records, “patient instructed to go the ER immediately if symptoms return”. Three days later, your headache returns, but since you just came from the doctor’s office, you don’t go to the hospital. A week later, an artery in your brain bursts and you have brain damage.
Even though the primary care doctor did no testing for an aneurysm in your brain and did not send you to the hospital, he will blame the bad outcome on you! The doctor will say that you ignored his advice and you should have gone immediately to the Emergency Room when the headache came back. If you had done what you were told, the whole thing would have been avoided.
The blame game is a common defense in more than half of malpractice cases. From day one of your lawsuit, the doctor will look for ways to blame you for what happened.
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