We are not doctors. Yet, we thoroughly read and digest medical records.
We are not nurses. Yet, we study and understand relevant protocol. Our
medical malpractice work includes
cases tried to verdict and won, and settlements involving:
- Failure to diagnose melanoma, breast cancer, brain cancer, anal cancer.
- Anesthesia malpractice, including failure of intraoperative attention.
- Surgical error, including devices left behind in the body, failure to identify
anatomical structures, and ineptness.
- Dental malpractice, including failure to protect the patient against objects
fallen from the dentist hands, denervation mistakes and errors with anesthesia.
- Pharmacy errors, including patient identification mix-ups, negligent dispensation
of the wrong medication, failure to verify prescriptions, and failure
to consult and inform pharmacy patients.
What Is Medical Malpractice?
Medical malpractice does not mean professional care yields a bad result.
Good care can produced bad results; things do not always turn out as planned.
Professional persons must make difficult judgments about differential
diagnoses, care options, and the benefits of a course of care to one aspect
of health as contrasted with the risks or damage to another aspect.
Instead, malpractice is committed when a physician fails to conform with
the standard of practice set by the average doctor in his/her specialty
area and community. The patient develops complications or new injuries
as a result. A physician cannot be responsible for the original medical
problem unless the malpractice act is failure to diagnose what should
have been diagnosed.
In Nebraska, malpractice has been explained as follows:
Proof of medical negligence (malpractice) requires two basic evidentiary
steps, followed by proof relating to proximate cause and damages: (1)
Evidence of generally accepted and recognized standard of care or skill
of the medical community in the particular kind of care; and (2) a showing
that the physician or surgeon in question negligently departed from that
standard in his treatment of the plaintiff. The burden of establishing
both these essential elements rests upon the plaintiff's introduction
of expert medical testimony.
Burns v. Metz, 245 Neb. 428, 513 N.W.2d 505 (1994).
In order to prevail in a negligence action, a plaintiff must establish
the defendant's duty to protect the plaintiff from injury, a failure
to discharge that duty, and damages proximately caused by the failure
to discharge that duty. Stahlecker v. Ford Motor Co., 266 Neb. 601, 667
N.W.2d 244 (2003). In Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001),
we stated that in a malpractice action involving professional negligence,
the burden is on the plaintiff to show: (1) the generally recognized medical
standard of care, (2) a deviation from that standard by the defendant,
and (3) that the deviation was the proximate cause of the plaintiff's
alleged injuries. Ordinarily, in a medical malpractice case, the plaintiff
must prove the physician's negligence by expert testimony. Walls v.
Shreck, 265 Neb. 683, 658 N.W.2d 686 (2003).
Keys v Guthman, 267 Neb 649, 676 NW2d 354 (2004).
Professional negligence is malpractice. It can occur in medical malpractice
cases can occur by:
- Delay or failure to diagnose a condition
- A surgical or anesthesia related mishap during an operative procedure
- Failure to teach the patient the risks and rewards of a treatment plan
and failure to get the informed consent of the patient for care
- Failure to properly treat the disease process
- Misuse of Prescription Drugs or a Medical Device or Implant
A Nebraska medical malpractice attorney responsible for handling a client's
malpractice case must determine as quickly and efficiently as possible
whether a good, actionable case exists. . This is so because medical malpractice
cases are often complex, expensive to pursue, have a high risk of no recovery.
They often have emotional components for the patient and the family, too.
Analytically, these steps must occur to develop a case:
- The first step in the process requires the patient to hire the lawyer,
and agree to a written, negotiated, fee agreement.
- A list of knowledgeable persons must be identified. At the same time exhibit
and evidence sources are identified to the extent possible. A detailed
medical history is also needed.
- Terms for investigation must be discussed. This should formalize the investigation
to occur. The costs and scope of the investigation must be decided upon
by the attorney and client. The investigation itself can be costly so
the parties must understand how they will proceed.
- Evidence must be gathered, including medical charts and records, x rays
or other films, pathology data, standards of care applicable to the case
from published sources.
- The case is investigated and then evaluated for viability and financial
value. At this point, this is done with sketchy information.
- An expert witness must be identified to evaluate the case for the presence
of professional negligence. This is best done by a witness who will testify
if the case proceeds. This person is likely to become a witness for the
plaintiff (you) and his testimony should be available for use in Court.
The reviewing witness must be a medical specialist in the area of work
or practice of the prospective defendant(s).
- If the case is to proceed, strategic decisions to focus the case on the
most likely successful claim(s) must occur. "Rifle shot" direct
decisions are needed. The "sue everyone" shotgun approach is
costly, time-consuming, and seldom successful.
Many technical rules favor the doctor or hospital over the patient. A skilled
trial lawyer (not necessarily a skilled trial lawyer) is needed to steer
the case through court.