Failure to Diagnose Hurts Chance of Recovery

Each Chicago medical malpractice attorney at our firm is well-versed in the unique methods used by many defense teams in their attempt to avoid liability for the mistakes made by medical professionals. Contrary to popular belief, a defendant (via his or her lawyers) very frequently works to ensure that a plaintiff never actually has the proverbial “day in court.” Instead, it is often a long hard slog before the plaintiff jumps through all of the hoops and is allowed to take a case to a judge or jury for a final decision on the dispute. Before that time arrives, many defendants use every tool in the box to attempt to get the case thrown out of court.

One of the most common arguments made is that insufficient information was presented to the court before trial from which any fact-finder could establish liability. To succeed in any case there are certain elements that must be shown. If even a single one of those elements is not mentioned in court documents, then the defendant can have the case dismissed for failure to state a sufficient claim for which relief can be granted. This would be the end of the suit, even though the case had not actually been taken to trial.

For example, in an Illinois medical malpractice case, a negligence theory is usually involved. There are generally agreed to be four basic elements that must be shown to establish negligence: duty, breach, causation, injury. In a medical malpractice case the first element is pretty obvious, because a medical professional always owes a certain duty to those in their care. The breach element is essentially proven by showing that the doctor did not act as a reasonable doctor would in the same circumstances. In most cases, if the breach is shown to have occurred, than it is obvious that it caused injury.

However, in some rare cases there is disagreement about whether there was an injury caused by the breach at all. Often a defendant will claim that, even though care was not appropriate, it didn’t make any difference because the patient would have suffered the same harm no matter what. If this is true, then the injury was not caused by the breach and the case would fail. However, the idea of “injury” is not so black and white in the context of medical malpractice. For many years, courts have understood that there is nuance to the idea of injury. It is never as simple as whether or not an exact harm would unquestionably have occurred. Instead, it is more appropriate to consider the likelihood that a patient would have recovered or experienced less problems if proper care was given. There are few certainties in medical care.

This idea of malpractice leading to a diminished chance at recovery was at the heart of a case recently discussed in the Bellingham Herald. The victim in the case had a third of her brain tissue destroyed after suffering a stroke. However, her doctors failed to properly diagnose the stroke or provide necessary treatment. T he delay that she experienced, her attorneys argued, led to a decrease in the chance that she could have more fully recovered. Initially, the trial judge dismissed the case because he believed that the plaintiffs did not properly plead all of the requirements elements. However, last week the state’s Supreme Court overruled that decision, noting that negligence causing a loss of chance of a superior outcome was sufficient for the case to proceed.

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