Malocurrence vs. Medical Malpractice



Bad medical outcomes do not necessarily justify a finding of medical negligence. There must be a negligent act that causes the bad outcome. Although such outcomes may suggest to a layperson that negligence has occurred, the attorney must prove that the patient received medical treatment that did not comport with the standard of practice and that the patient suffered significant damages as a result. Actually, there are four requirements, all of which must be present: duty; breach of standard of care; harm; and causation. Their presence or absence should be determined by professional medical case evaluation specialists like myself.

For example, not long ago, I reviewed a case in which the plaintiff attorney had filed suit against a urologist, radiation physicist, and radiation oncologist because the organs around the plaintiff's prostrate were damaged by the radioactive seed implants which were targeting the prostate cancer. Because of this complication, the plaintiff required a more extensive procedure and the loss of these organs. Clearly, this was a bad outcome. However, the physicians were found not to be negligent at trial because the reviewing expert found no departure from the relevant standards of care that might have led to the injuries. The expert opined that this is a common complication that can occur even amongst the best of surgeons, and informed consent was properly given and obtained before the patient agreed to the procedure. Accordingly, there was no breach of the standard of care, and the case had no merit.

As can be seen in this example, a bad medical outcome is not enough to ensure a successful medical malpractice lawsuit.

Copyright © 2020 - & Dr. Barry Gustin