Steven E. North and Laurence M. Deutsch
Not every case in which a doctor “did something wrong” results in a medical malpractice case. Sometimes there is fault on the part of the doctor and the patient. Depending on the circumstances, a case may still be brought (as the law allows the Jury to deduct the percentage of patient’s fault, leaving the rest of the case intact). But sometimes, the degree of patient fault is so high, or so intertwined with key case issues, that it negates what might otherwise have been a case.
A recent article in the Washington Post illustrates a situation of combined patient and doctor fault in which an industrial engineer nearly died because of cascading errors on his part, as well as on the part of his healthcare professionals.
The patient had taken a run with one of his dogs, which got into a tangle with another dog, which took a bite out of the man’s thigh as he tried to separate the canines. At home, the man cleaned and bandaged the wound and applied an antibacterial ointment. So far so good. He did not have a primary care physician and waited until the next day to go to an urgent-care clinic.
In itself, not a big problem, and not unreasonable. At the Urgent Care Center, the errors began:
Patient mistake: The ER was busy, and after hours of waiting, the patient and his wife left the hospital without seeing a physician. This was a critical error which, in our opinion, would undermine any potential prosecution of the case.
The patient got sicker, developed a high fever, and went back to the hospital. He was also mentally confused and appeared to be going into shock. The doctors at this point were thinking the patient had meningitis, as the symptoms seemed consistent with that illness. Only rare strains of infection from dog bites could present with this type of symptom.
At this point, the patient’s wife was asking if the dog bite could be the problem, which was dismissed by hospital staff, which the illness was probably some type of meningitis. There is a saying in medical schools that, “When you hear hoof beats you should think of horses rather than zebras.” The ideas is that you generally will think of more common causes of symptoms first. However if zebras are life-threatening, and the horses are not, the better approach is to “rule out” any life-threatening “zebra” first. This is a process called “differential diagnosis,” which is also taught in medical schools, so doctors do not overlook life-threatening conditions while there is still time to treat them.
As it turned out, the biting dog was infected with a rare but deadly bacteria that is fatal in up to 80% of its victims. A wise physician ultimately put the pieces together, recognized the disease process, and immediately instituted therapy. The patient lived, but he had to have parts of several toes amputated, and he suffers significant hearing loss.
So who is responsible for these injuries? The first doctor, the second doctor, the patient, and to some extent the final emergency room. Is this a case? Probably not, or at least probably not a case we would bring. In this case the patient’s own mistakes were simply too many, and too intertwined with the central medical issues to make this a situation in which we could really say with confidence that the majority of fault and majority of the harm was due to anyone but the patient himself.
We have successfully prosecuted many cases where there is a failure on the part of the healthcare professional to provide proper advice. All of these cases are sometimes hard to prove because they devolve into a "he said – she said" dispute. If there is some additional proof that supports the patient's version, then the patient has a good chance of winning the case. However, if the patient bears significant responsibility in the course of the adverse events that occurred, jurors tend to place all the blame on the patient in their verdict.
The takeaway from this article is to appreciate the fact that the patient's conduct plays a critical role in the determination of liability. Failing to follow doctor's advice, leaving a hospital against medical advice, and walking out of an emergency room without treatment are all circumstances that most likely will "kill" an otherwise favorable case.
Source: The Washington Post, Sandra Boodman, “A Dog Bite Sent Him to the ER. A Cascade of Missteps Nearly Killed Him,”
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Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees
1988, New York and U.S. District Court, Northern, Southern, Eastern and Western Districts of New York. Union College, Schenectady, B.A., magna cum laude, 1984 Phi Beta Kappa; University of Chicago Law School, J.D., 1987
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