First published in The Lawyers Weekly March 30, 2001, Vol. 20, No. 44
A young woman had a routine operation on her ovary and the elective surgery itself was uneventful. Postoperatively she became feverish and within 24 hours developed septic shock and multisystem organ failure, requiring artificial ventilation and hemodialysis.
A normally fit man developed chest pain, was carefully assessed, given medication at the emergency room...and found dead the next morning.
What went wrong? Were the complications avoidable? Did the caregiver make an error? - a negligent error? Were the nurses or the hospital to blame?
The Nature of Medical Malpractice Litigation
Actions for medical malpractice must pass the 4-part test: Duty, Negligence, Causation and Quantum. The plaintiff must show that 1) the defendant caregiver owed him a Duty, 2) and was Negligent in providing professional services, that 3) Negligence more than minimally contributed to adverse outcome, and that 4) the claimed Damages were caused thereby.
Duty is rarely in dispute and Quantum is not the central contentious focus that it commonly is in accidental personal injury litigation.
Negligence and Causation make or break most actions for medical malpractice.
Unexplained Disaster
In some potential causes of medical malpractice action, the plaintiff is able to articulate one or more aspects of care that he proposes were substandard.
In many cases, however, unexpectedly adverse outcome is the sole source of complaint. The lawyer-physician team is then left to figure out whether and how medical negligence caused, or materially contributed to, that outcome.
By way of further recent examples
- a previous fit middle-aged man developed pneumonia, was eventually hospitalised, and subsequently died: autopsy did not explain why he did not respond to apparently standard therapy.
- a woman being administered anticoagulants ("blood-thinners") for venous thrombosis (a blocked vein in her leg) developed an unexplained stroke from a blocked artery: the negligence was evident in blood results that had been ignored.
Following elective surgery, the outcome might well be within the known range of serious complications noted in textbooks and recorded in the medical research literature. "Had I known, I would not have agreed to the surgery" is a common and understandable response to the disaster.
However, in most cases, lack of informed consent is risky as a stand-alone litigation strategy, because the court may well find for the defendant on the objective test: without the benefit of hindsight, a reasonable person in the plaintiff’s situation would have consented, even after standard disclosure.
A more reliable cause of action arises if it can be determined that unacknowledged Negligence caused the disaster.
Even in cases where the plaintiff incorrectly identifies particular elements of the medical care as substandard, the poor outcome may have resulted from mismanagement that is less obvious.
A Radically Different Approach
The underlying questions are no longer, "can we prove Negligence?" and "can we prove Causation?" Working from basic clinical pathology, hypotheses of what might have gone wrong must be generated.
This approach involves detailed analysis of all the deviations from the expected course of events, including the earliest and most subtle indicators.
Next, all the possible therapeutic omissions and commissions that would explain the deviations are identified and translated into arguably substandard care.
These hypotheses must then be tested by looking for supportive and unsupportive, circumstantial evidence.
There may be documentary omission of standard history, examination or investigations, and the clinical records frequently contain other hints. Such evidence might include:
details in the pathological reports of surgically removed tissue;
test results that were apparently not noticed;
fraudulent revisions of the medical records - even the content of the additions usually further inculpates the defendant;
mismatch between medical and nursing records;
veiled criticism by nurses or remediating physicians.
Documentary evidence of substandard care is commonplace. In clinical records obtained for an action for medical malpractice, elements of arguably substandard medical care can be found without much difficulty.
Common examples are 1) general and family practice records without a full assessment at any stage, and 2) hospital admission examinations without neurological testing.
The challenge is to discover and articulate a simple, coherent explanation that Causally links substandard care to adverse outcome. In a minority of cases this is possible.
Proving It
Once theory or theories have been developed, the medical expert witnesses need to be directed to, and asked to assess, the circumstantial evidence of substandard care.
Such evidence is presented in the form of questions to the clinical specialist(s) who have agreed to consider providing medical expert opinion.
When the clinical expert validates the hypothesis, the likely robustness of the supportive expert opinion must still be gauged against the expected defence expert opinions.
In Conclusion
Adverse outcome is an ever-present possibility in any therapeutic intervention. Medical error causes or materially contributes to some adverse outcomes. Some medical errors, perhaps a third, arise from substandard care.
The doctrine of res ipsa loquitur is no longer applicable in medical malpractice litigation.
The plaintiff says, "Things went badly wrong, so someone must have screwed up." (Not true).
The defence says, "My client did nothing wrong (Possibly) and the onus is on the plaintiff to prove otherwise (True)."
Which direction would the bullet have come from? In the mountainous clutter of the medical records, smoking guns are sometimes to be found...
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