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"Defensive Medicine" and Realities of Medical Malpractice

Recently, someone I know went to a local emergency room with a migraine headache. This person is a longtime migraine sufferer who on occasion seeks treatment at the ER. The ER physician ordered a CT scan, which the patient declined. The physician readily agreed that a CT scan was not really necessary given the long standing migraine headache history and cancelled the test.

Why order the test in the first place? It's a practice known as "defensive medicine." Defensive medicine is defined by different people in different ways, but the bottom line is that some physicians would prefer to order expensive and unnecessary tests than risk a lawsuit over some rare, undiagnosed condition. In other words, it's better to be safe than sorry, which is certainly a good adage. The application of defensive medicine seems to be a reality of medical practice today.

As a medical malpractice attorney in a busy Fairfax, Virginia law firm, I receive frequent calls from potential clients with questions about the quality of their healthcare and the manner in which it was provided. The practical application of defensive medicine is a repeated topic of conversation.

Nearly all of the people who contact me believe that they are victims of medical malpractice. Many are interested in pursuing compensation yet reluctant to sue a long-time health care provider. The majority believe that any medical error or injury resulting from health care is a compensable medical malpractice claim. Most think that medical malpractice cases result in relatively speedy settlements, without the need for litigation.

It's my practice to not only listen to their medical ordeals but also to explain to them some of the realities of pursuing a medical malpractice case.

Reality #1: Medical malpractice can come in all shapes and sizes. In Virginia, medical malpractice can result from care and treatment by a variety of health care providers in a number of circumstances.

Examples of health care providers include physicians, nurses, pharmacists, midwives, therapists, counselors, and medical technicians.[i]

Examples of circumstances that might constitute medical malpractice include surgical errors (unnecessary surgery, wrong site surgery, retained foreign objects after surgery, surgical complications), failure to diagnose or properly treat an illness or condition, prescription medication errors, wrongful death related to medical treatment, communication errors, labor and delivery complications, and consent to treatment, to name a few.

Reality #2: A poor medical outcome is not necessarily medical malpractice. Health care providers are not held to a standard of perfection - unexpected results do happen in the absence of negligence. Instead -- and I'm paraphrasing somewhat -- the health care provider is held to a standard of what is "reasonable" in the profession/area of specialty.[ii]

Reality #3: An apology or expression of sympathy from a doctor, nurse, or other health care provider is not necessarily an admission of liability. Very often I hear, "Well, the doctor already told me s/he was very sorry. How much will I get?" It's not quite that simple. The health care provider may show sympathy, but that does not mean that monetary compensation will readily accompany that sympathy.

Reality #4: Don't expect the health care provider to immediately settle and simply hand over a large sum of money. Of course, some medical malpractice cases do settle, but usually not quickly. Most medical malpractice cases are vigorously defended, even in cases of seemingly blatant negligence.

Reality #5: Medical malpractice cases are not inexpensive. In Virginia, a medical malpractice Plaintiff must -- in most cases -- have certified expert witness support in order to fully pursue a medical malpractice case.[iii] With rare exception, medical expert witnesses do not work for free. Moreover, in order to obtain the support of an expert, the expert needs to review all of the relevant medical records. Once again, with rare exception, copies of medical records are not free either.

Reality #6: Even the "best" health care providers may commit medical malpractice. This is true of the health care provider that has been treating you for years, the health care provider you saw only once for five minutes, and the health care provider with awards and plaques lining his or her office walls.

Reality #7: Lack of intent to cause injury is not a defense to medical malpractice. It's safe to say that health care providers by and large do not set out to cause harm or injury, but that same lack of intent is generally not a defense where injury does occur as a result of negligence.

Reality #8: Suing a health care provider for medical malpractice does not necessarily impact the provider's licensing or ability to continue practicing. Whether the negligent actions of a health care provider result in disciplinary action is ordinarily a decision made by an agency that has been tasked to investigate a health care provider.

Reality #9: The law does limit the time for recovery in a medical malpractice lawsuit. Limitations periods vary by jurisdiction and can be very fact-specific in medical malpractice actions. It's always wise to act on an instinct to contact an attorney as soon as possible to preserve any potential cause of action.

Reality #10: Medical malpractice is a highly specialized area of practice. Every potential medical malpractice case is unique and must be evaluated on its own merits and circumstances. If you have questions about a case of your own, gather the essential information - diagnoses, dates of care and treatment, and names of health care providers - and choose an attorney who will provide you with the opportunity to share your story.

[i] Code of Virginia Section 8.01-581.1

[ii] Code of Virginia Section 8.01-581.20

[iii] Code of Virginia Section 8.01-20.1/8.01-50.1

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