Medical Malpractice

At the present time medical malpractice has become one of the most rapidly changing areas of growth in the law, with many states experimenting in order to attempt to determine the fairest and most expedient procedures. It is absolutely crucial for any attorney whose practice includes personal injury litigation to be prepared to deal with the problems associated with medical malpractice cases; from the determination of whether or not a provable case has been presented by the client; through the intermediate stages of discovery, including the all-important expert witnesses and their reports; to the final trial stages. Particularly in today's litigation and inflation conscious society, cases of this nature often return verdicts and, predictably, settlements, which go well beyond what the best cases were returning as recently as ten or fifteen years ago. The litigator who is not prepared for a medical malpractice case will find this area of practice passing him by and, perhaps more seriously, could find himself defending against a charge of professional malpractice which could have been avoided had he taken the time to prepare properly.

Doubtless a major reason for the relatively recent explosive increase in the number of medical malpractice cases is the tremendous surge in technical developments in the various medical fields in recent years. Because of the experimental nature of many new medical techniques, as well as the inexperience of many physicians with the newer techniques and equipment, there are simply more mistakes being made. The attorney deciding whether or not to accept a medical malpractice case must be prepared to deal with the issue of whether a mistake was made which rises to the level of a justiciable claim, or whether the injury is simply due to a doctor's choice to take a calculated risk, such as where the patient was exposed to one possible injury for the sake of alleviating or preventing another one. For example, some years ago the danger of infant retrolental fibroplasia (RLF), an eye injury due to overexposure to oxygen, was on the wane due to the development of better oxygen delivery techniques. However, there has been a recent sharp increase in the occurrence of this condition, largely thought by the neonatal specialists to be the result of heroic measures currently employed to maintain the lives of prematurely born infants by delivering supplemental oxygen which is necessitated by the infant's insufficient lung development. If the child subsequently develops RLF disease, the attorney evaluating such a case may wish to consider the likelihood of the success of the defense of ``medical judgment,'' i.e. that the neonatolgist believed that it was necessary to expose the child to the increased risk of RLF disease in order to save his life. Further considerations for the attorney are whether or not the oxygen delivery was proper, whether the risk was properly undertaken considering the availability of equipment, the experience of the personnel involved and the condition of the child. Thus, while a few years ago the occurrence of an incident of RLF disease would probably have been cause to assume the doctor's negligence, such an occurrence in the context of today's neonatal procedures must be evaluated more closely before one can assume that there has been a departure from an acceptable standard of medical care. The recognition of the importance of that determination helps to put into context the entire problem of medical malpractice in today's society. Too many unfounded and unsupportable lawsuits could, conceivably, lead to the discouragement of the medical experimenters on the one hand, and the young legal lions on the other, both of whom must flourish in order to assure the proper and balanced development of our society.

Society has a significant interest in the just disposition of malpractice claims. Success of ill-founded, albeit honestly made, claims can have harmful effects in thwarting reasonable innovations in medical practice and genuine progress of the healing arts. Failure of sound claims--particularly when it results from denial of the substance of the right to a fair hearing--fosters continuation of malpractice.

Because of the highly sophisticated nature both of the injuries and of their proof in most medical malpractice cases, the plaintiff's lawyer pursuing damages in such a case has a professional obligation to understand the nature of each case and how to handle it properly. While it is true that a medical malpractice case is ``just'' a negligence case, the ``just'' is subject to a great deal of qualification because of the complicated problems of proof. An example can be found in a recent New Jersey case which yielded a nearly million-dollar jury verdict despite a serious question of proximate cause. The infant plaintiff, born prematurely and relatively asymptomatic at birth, was suffering from a developing hydrocephalic condition which went undiagnosed by the pediatrician until the child was extensively brain-damaged, actually reaching a stage known as ``total decompensation,'' where his body systems began to shut down and he nearly expired. The case was analyzed and pursued on that basis and the services of experts, a pediatrician and a pediatric neurologist, were obtained. They prepared excellent reports based on the available information and the case was prepared for trial accordingly. During the course of the pre-trial discovery a series of ``CAT-Scans'' were obtained by plaintiff's counsel which, upon analysis, revealed a congenital defect, totally unrelated to the hydrocephalic condition, known as ``agenisis of the corpus callosum,'' a condition in which the nerve fibers of the brain fail to develop properly thus causing the lack of connection and communication between the two hemispheres of the brain. Under the New Jersey discovery rules (similar to the Federal rules) which require full pre-trial disclosure, defense counsel was entitled to this informa - tion. The defense immediately obtained the report of an expert who stated that all the infant's problems (of retardation and developmental impairment) were attributable to the agenisis problem and therefore there were no damages traceable to any wrongdoing by the defendant pediatrician. Plaintiff's ultimate presentation, which opened with an acknowledgement of the congenital problem, depended upon proofs which established that, at best it was speculative to assume that all of the child's problems were attributable to the congenital defect and that there was a ``unreasonable medical probability'' (the standard in New Jersey) that the child would not have been as severely handicapped, had he suffered only from the agenisis condition. This proof left room for the jury to return a verdict which, while evidently allowing for the likelihood that the child would not have been perfect even in the absence of the doctor's wrongdoing, nevertheless awarded him an amount sizeable enough to compensate him for the degree of severity of injury.

The important point here is that, had the available evidence not been fully presented, the jury would have been faced with the unpleasant choice of reaching a verdict which would not fairly reflect justice, regardless of which conclusion it reached. But, by plaintiff's acknowledgement of the pre-existing problem and then presentation of proofs on the issue of the degree of severity, the jury had a reasonable basis upon which to return a plaintiff's verdict. Any other disposition of such a claim could have resulted in feelings of intense dissatisfaction which would have gone well beyond the typical litigator's resentment at losing a case, regardless of which side he might be on and, further, could have resulted in extended appeals. However, a recognition of the issues and the approach taken led to a proper disposition which enabled the plaintiff to be protected throughout his life while not saddling the defendant with a degree of wrongdoing of which he was not guilty.