Medicine is an inherently dangerous practice. It requires working on someone’s body, and that work is often internal. Prescribing medicines and performing surgeries are services that interact with organs and chemicals. Negative reactions and injuries are bound to happen, and not all medicinal injuries are the result of malpractice.
Legally, malpractice is a form of negligence. The claim is that a medical professional made an error that could have been prevented, and that error then resulted in injury. A plaintiff must prove that both of these claims are true. If you’ve been accused of medical malpractice, here are some defenses you and your lawyers can use in court.
Show Avoidable Consequences
“Avoidable consequences” argues that the patient’s behavior caused their injury. No matter the scenario, it is unlikely that an unobserved patient made absolutely no mistakes. Patients are responsible for their own actions. Imagine a patient who just had shoulder surgery, and they were advised to avoid lifting heavy objects. The weekend after they were released from the hospital, they help a friend move, causing damage to their shoulder and ruining the surgeon’s work. This is an example of how the plaintiff, not the doctor, was responsible for their own injuries.
South Carolina uses a comparative negligence system in civil court. Put simply, after the judge hears both sides of the story, they assign a percentage of blame to both the plaintiff and the defendant. If the plaintiff is found 51% or more responsible for their own injuries, they cannot receive compensation. When your lawyers can prove avoidable consequences, you may not have to pay damages to the plaintiff.
Argue the Substantial Minority Principle
Medicine is an ever-changing field. There are standardized practices, but there is also room to try new methods. The plaintiff’s lawyers may claim that you deviated from standard practice, and you are therefore guilty of malpractice.
However, it is possible to argue the “substantial minority principle.” In this defense, the doctor is claiming that, although their method wasn’t standard, it is a method upheld by a number of respected doctors in the field. It is not a method used by the majority, but it is practiced by enough revered physicians to be a viable form of treatment.
Cite Good Samaritan Laws
There is a common trope in TV and movies where a person is hurt; a crowd gathers; and someone asks, “Is anyone here a doctor?” In South Carolina, this situation is actually protected by law. Good Samaritan laws protect people who were trying to help in an emergency situation.
If you are a doctor, and you find yourself helping someone on the street, more is expected of you than the average citizen. The law assumes that you will use your medical knowledge to treat the patient with the utmost care. However, that care will be naturally inhibited. Without access to a hospital or its resources, there is only so much even the most skilled doctor can do. If you helped a stranger to the best of your ability, you may be able to protect yourself from liability by citing Good Samaritan laws.
Challenge the Evidence
Both the plaintiff’s and defendant’s lawyers must gather evidence, interview witnesses, and so forth. The burden of proof is on the plaintiff, including the validity of the claim. Just because a patient’s surgical area hurts, it does not mean there was malpractice. In the fictitious example above, there needs to be verifiable proof that a tool was left behind during surgery. The documentation needs to show exactly what the tool is; where it was left; what damage it caused; etc. If the plaintiff’s evidence is weak, it can be challenged in court, invalidating the case.
Demonstrate Standard of Care
Sometimes injuries happen regardless of anyone’s actions. Given the highest level of medical care, people can still suffer. Depending on the situation, it may be possible to prove that there were no standard of care violations. The patient simply reacted badly or healed poorly, and it is not your fault. There was nothing you could have done differently to avoid the patient’s injuries.
Challenge the Causal Relationship
Remember, the plaintiff must prove that your actions directly led to their injuries. It would be very hard to prove that Jim’s knee surgery led to an abdominal hernia. Not all false claims will be that extreme. To the untrained layman, injuries may appear to be connected to treatment. As a medical professional, you can explain how there is no causal relationship between the two.
As a medical professional, you are giving your patients as much information about their options as you can. There is a risk involved with any procedure, especially a surgical one. Once patients have had the options and risks explained to them, it is up to them to decide if they want to go through with treatment. If the potential of injury was known from the beginning, it may be hard for them to prove that their injuries were due to malpractice.
This defense should be used sparingly, and only when the evidence is rock solid. Plaintiffs can claim that even though they were informed of potential complications, they were not informed of other options. Make sure that you are continually giving your patients many options for treatment, allowing them to make the most informed decisions they can.
If you’ve been accused of medical malpractice, call us for a free consultation. We are ready to listen and help protect you and your business. Our number is (843) 968-0886, and you can contact us online.