Medical Malpractice In Delaware - part 2
As a Delaware medical malpractice lawyer, I talk with clients all the time who ask about suing their doctor or a hospital. These people were seriously injured, and they feel that the doctor or the hospital should pay. In my last article, I explained that medical negligence occurs when a doctor runs through a medical red light (deviates from the standard of care). The purpose of this article is to discuss the question of causation.
To win a medical malpractice case in Delaware as in other states, we have to prove what the standard of care is, that there’s been a deviation from the standard of care, and that there’s a causal link between the deviation from the standard of care and the patient’s injury. Causation may sound simple, but believe me when I tell you. It’s not.
In order to prove causation, a medical expert has to testify in court that there’s a reasonable medical probability that the doctor’s negligence caused the patient’s injury. Let’s take a recent medical malpractice case in Delaware where the jury decided that the doctor was negligent, but that his negligence was not the cause of the injury to the patient.
On November 19, 2001, a family doctor viewed x-rays of the patient’s chest but didn’t see any problem. In April 2002, a different doctor diagnosed the patient with lung cancer Metastatic lung
cancer caused the patient’s death on January 4, 2003. The patient’s family claimed that the doctor negligently interpreted and reported the November 19, 2001 chest x-rays and that his failure to detect and report discoverable cancer at that early stage in 2001 resulted in a curable lung cancer metastasizing and becoming an end stage, incurable cancer by the time of its diagnosis in 2002.
During the trial, it was proven that the abnormalities shown in the November 19, 2001 chest x-rays were consistent with the presence of lung cancer and that the standard of care required the doctor to identify the abnormalities as a potential malignancy and to recommend that a chest CT scan be performed to further evaluate the abnormalities in order to facilitate a definitive diagnosis. What was disputed, however, was whether the radiographic abnormalities in Barrow’s left upper lobe were benign. If they were, the follow up diagnostic testing required by the standard of care, which included the surgical removal of the abnormal tissue in the left upper lobe, would not have revealed the cancer. Any negligence on the doctor’s part, therefore, could not have proximately caused the patient’s death.
In order to win the case, the plaintiff would have to prove that the abnormalities would not have been benign, and that diagnostic testing and surgery would have led to the discovery of the cancer in time. This issue usually comes down to a battle of the experts, and who the jury decides to believe.
Medical malpractice cases are expensive to bring, and most of these cases are decided in the doctor’s favor. In my next article, I’ll talk about the results of these cases in Delaware.
