Medical Malpractice / Medical Negligence

For years, Eric has represented people who have been injured or had a relative killed through a physician’s — or other health care provider’s — failure to use ordinary care (i.e., failure to meet the standard of care).

It may surprise you to know that despite receiving many calls each year about possible medical malpractice cases, Eric rarely takes these cases. Why? Because in Eric’s experience they are both extremely expensive and difficult to win. In order to win a medical malpractice case based on a health care provider’s failure to meet the standard of care,[1] a plaintiff needs to prove (1) the standard of care is that applied to the medical event in question, (2) that the doctor or health care provider violated that standard of care, (3) that this violation of the standard of care caused the bad outcome that led to Eric being contacted, and (4) that the bad outcome caused damages.

The standard of care means what a reasonable physician would do under the circumstances. It typically is different in every case because the circumstances (the patient’s illness or condition, and the information available to the health care provider) is different in every case. For example, in a hospital emergency room setting, if a patient who almost never gets headaches comes in with his worst ever headache, the doctor or physician assistant should have a sample of his blood analyzed. If the hospital didn’t run the blood panel and released the patient, and he later died of a blood disorder that the test would have revealed (and that was curable with timely treatment – this part is also important). Eric successfully litigated a case with these facts years ago.[2]

To pursue this case, Eric hired: First, an emergency room physician to testify about the standard of care and that it had been violated (1 and 2 above). Second, a hematologist (blood doctor) to testify regarding causation (3, above, essentially, that had the standard of care been met, the bad outcome, in this example – death — would have been avoided).[3] Third, a vocational rehabilitation counselor to testify about the jobs and income that the patient would have had and earned had he not died. Fourth, an economist to project out the money that the patient would likely have earned (one element of the damages, 4 above) had he not died, and that had been deprived from his family.

These experts are typically very well credentialed and as you would expect, charge for their time by the hour. Thus, in order to bring a case like the one above, Eric can expect to (and did) spend tens of thousands of dollars on expert witnesses alone. For this reason, Eric will only take medical malpractice cases with clear violations of the standards of care, clear causation, and significant, life altering harms and losses (what lawyers call “damages”). Additionally, the health care providers always have access to extremely clever and well funded defense attorneys who find ways to attack nearly any plaintiff’s case. They also have the advantage of having easy access to local expert witnesses. [4]

Because these cases require such significant resources (of both money and time), for the past decade, Eric has formed a team with another plaintiff’s medical malpractice lawyer who spent more than a decade trying cases for doctors, before switching sides to handle cases for patients harmed through health care provider negligence. This team approach has led to excellent results for Eric’s clients and helps provide greater resources for each malpractice case that Eric takes.

So, in order to take a malpractice case, Eric will evaluate the case for all 4 of the elements listed above. If he decides to move forward after the initial phone call or email, he will order the patient’s medical records and, typically, pay to have them reviewed by a qualified expert witness. If the expert believes that there is a case, Eric will then proceed to put the rest of the case together.

If you have a potential case that you would like to discuss with Eric, please call him at 240-467-5741 or email him.

[1] Medical malpractice cases can also be brought for a “lack of informed consent,” but these cases are rarer.

[2] Another example of a violation of the standard of care is a physician who misses a tumor on a lung x-ray or a mammogram when a physician in the same specialty would have seen the tumor if he or she was being careful.

[3] Note that a potential case may present a violation of the standard of care and harms and losses, but no causation. If so, it is not a case that Eric would take. For example, let’s say a physician reviewing a mammogram misses a tumor that other reasonably careful physicians would have caught. If the tumor was cancerous at Stage 4 (the most advanced and deadly stage), the patient would not likely have survived even if the physician immediately detected the cancer on the mammogram. In other words, the violation of the standard of care would not have made a difference in the patient’s outcome. If so, there is no causation, and Eric would not take that case.

[4] Typically, health care providers do not want to testify against their local colleagues. For this reason, Plaintiff’s counsel nearly always has to go outside of the area where the malpractice occurred to find expert witnesses. On the other hand, it is usually easy for defense lawyers to find local doctors to support their clients who are accused of malpractice.