Doctor holding up an x-ray of a patient's chest

What is Considered Medical Malpractice?

My wife and I recently listened to a podcast, “Dr. Death.” The story chronicles the medical career of neurosurgeon, Dr. Christopher Duntsch. It is a fascinating and frightening story of how a physician somehow made it through medical school and neurosurgical residency without having the skills, the know-how, or the temperament, among other needed qualities, to properly perform even the most routine neurosurgical procedures. In the short medical career of Dr. Christopher Duntsch, 33 of 37 patients he operated on were either killed or seriously injured in the Dallas – Fort Worth area. Dr. Duntsch’s actions were so outside of the recognized level of minimal competency for a neurosurgeon that he was ultimately criminally prosecuted in a criminal court for the injuries he inflicted upon one of his patients. The criminal prosecution of a physician for poor medical care is unheard of, but the culpability associated with his actions giving rise to his prosecution and ultimate conviction are truly unparalleled. There is a lot more to the story than just Dr. Duntsch’s lack of skill or caring. I don’t want to reveal too much, but there were numerous opportunities for others to intervene which would have prevented most of the injuries that were ultimately inflicted. I highly recommend this podcast to anyone.X-ray of surgical item left in patient

The vast majority of medical care providers are well educated and trained and well-intentioned in the management of their patients. In my career, I have never heard of medical malpractice being committed as flagrantly as that described in “Dr. Death.” Over the years, however, we have encountered many instances of objectively unacceptable provider behavior. We’ve reviewed cases involving surgeons who were intoxicated while performing surgery. We’ve been involved in cases where physicians have attempted to cover up their serious errors so their patients couldn’t seek justice. Surgical implements such as sponges and hemostats have been left inside patients causing serious injuries. (See photo from a real case handled by Olen Sr.).

What Is and What Is Not Medical Malpractice 

We receive hundreds of calls each year from folks wondering whether or not they may have been injured as a result of substandard medical care. So, I thought I would very briefly summarize what is and what is not a medical malpractice case.

First and foremost, a bad outcome is not necessarily malpractice. Anytime a surgery is performed, there are risks. If a recognized risk occurs in a surgical procedure, that’s usually not going to be considered provable malpractice. So, what is considered medical malpractice?

Medical malpractice occurs when a medical professional deviates from the standard of care. What on earth does that mean? That means that a medical professional has failed to practice medicine in a manner which is consistent with the minimal standards expected of a reasonably prudent and competent health care provider under the same circumstances. How do you prove that a medical professional deviated from the standard of care? In order to prove a standard of care violation, a competent medical care provider must testify that what your provider did violated the standard of care. Yes, that’s correct. A medical care professional must testify against another medical care professional. Aren’t physicians and other healthcare providers reluctant to testify against one another? Yes, no doubt about it. What else is required?

In order to be successful, a claimant must prove more than a standard of care violation. A medical professional must also testify that a patient sustained an injury that would not have occurred ‘but for’ the alleged standard of care violation. Let’s assume your loved one went to a hospital and received poor treatment. If they didn’t suffer a significant injury as a result of that treatment, then they would be lacking an element of a successful claim. For a successful case, we must be able to connect an injury—usually a significant injury—to the standard of care violation.

For more information, click here to request a free booklet on Tennessee medical malpractice issues. Contact Emily in my office if you have any questions.

Thankfully, the Dr. Death story is so incredible that it is not likely to be repeated. Nonetheless, educating ourselves on our own conditions and, in particular, researching those that we depend on to treat us, is a smart idea. Bringing a family member to serve as an advocate and second set of eyes and ears to any important appointment is also a good idea. There is no need to be confrontational with a medical provider, but, on the other hand, it is ok to politely ask reasonable questions that could impact your health or that of a loved one. Listen to the Dr. Death podcast and send me an email to let me know what you think (oghjr@hayneslawyers.com).

Stay safe out there.

If you have been injured by a medical professional, don't hesitate to get help. Call our office for a free consultation today.

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