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The fifth element in a medical malpractice case

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The fifth element in a medical malpractice case

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A near fatal overdose of Insulin

A near fatal overdose of Insulin

Linda (name changed) was admitted to an inner-city hospital due to leg pain. She wandered through the hospital, searching for something. When she came upon an unlocked medication cart sitting in the hallway, she found it. She took a syringe, a bottle of Insulin, and a bottle of Lasix (reduces swelling) and injected herself with the contents of both bottles. Linda was a substance abuser, but it remains a mystery to this day why she injected herself with these medications. Within hours her blood sugar plummeted and she had a seizure.

After Linda’s acute care was over, it was clear that she suffered brain damage as a result of the drop in blood sugar. Her attorney filed suit against the hospital. As the plaintiff expert, I opined that it was a deviation from the standard of care to not provide closer monitoring of this young woman. It was a deviation from the standard of care and against hospital policy to leave a medication cart unlocked.

I heard that selecting a jury was tough. The jurors were asked this question: “Do you believe that a person with substance abuse is entitled to the same quality of care as someone who is not abusing drugs?” It took two days to find eight people in Newark, NJ who could say “yes”. I spent an entire day on the witness stand as each of the defendant’s attorneys cross-examined me.  I was told by my client that I did well.  During one of the breaks, I met Linda in the ladies room. She was having trouble getting her clothes adjusted and tried to put her underpants on over her skirt. As a result of her brain damage, her mother had to care for Linda and her daughter; Linda had become easier to control and was on a Methadone program.

The jury came back with a verdict on behalf of the defendants. The plaintiff’s attorney concluded that the jury could not bring themselves to place money in the hands of a substance abuser. They may have also blamed her for what occurred. (Jurors are not allowed to be interviewed after trial in NJ so it remains unclear why they came to that decision.)

I’ve recently learned this was the first and last medical malpractice case this attorney tried. Would a more experienced attorney have taken the case?

In order to successfully win a medical malpractice case, a plaintiff has to prove four elements.  (The plaintiff may be the patient if he or she is alive and capable of filing suit, if not, the plaintiff might be a family member or other entity.)

1. The healthcare provider had a duty to give care to the patient (Duty)
2. The provider did not deliver care according to what the reasonably prudent person would have done in the same situation. (Breach)
3. There were damages or injuries to the patient. (Damages)
4. The failure to deliver care according to the standards of care was the direct cause of the damages (Causation)

The character of the patient is the unofficial fifth element in a medical malpractice case. I have heard attorneys describe the ideal plaintiff as a person you would enjoy sitting next to in an airplane on a cross-country flight. “She’s a church organist”, I’ve been told by an attorney who described a wonderful person. “He and his wife are really nice people”, another attorney said. Conversely, attorneys are hesitant to take a case involving someone who is in prison*, has an intravenous substance abuse history, or in some significant way radically deviates from the norm. The harder it will be for the jury to empathize with the plaintiff, the harder it will be for them to award money. Savvy plaintiff’s attorneys carefully evaluate the background, demeanor, personality and habits of potential plaintiffs. It is better to put the plaintiff on trial before the jury does.

* An exception may be made for people jailed for minor offenses who are the victims of neglect in jail.
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For more on this topic, see Cultural Competence and Attorneys and How is the Economy Affecting Jurors.

Med League provides well-qualified nursing and other healthcare experts witness nationwide.

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4 Responses to “The fifth element in a medical malpractice case”

  1. I like this journal. Do you have any information on the “Safe Staffing for Quality of Care Act”. Is this the law in New York State? Apparently enacted in 2009 as A-2264 of the public health law. This law deals with nurse to patient ratios.

  2. I like this journal. Do you have any information on the “Safe Staffing for Quality of Care Act”. Is this the law in New York State? Apparently enacted in 2009 as A-2264 of the public health law. This law deals with nurse to patient ratios.

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