Malpractice Consult: Elements of Malpractice: Causation and Damages

Article excerpt

So maybe you've made a mistake. You missed a diagnosis you should have caught or provided treatment that wasn't quite right. But you got lucky - the patient wasn't harmed. If there is no damage, there is no malpractice. Consider a doctor who reaches the wrong diagnosis before treatment is rendered in a timely fashion by another doctor. There was no damage from the incorrect diagnosis and therefore no malpractice.

Key to any malpractice case is "proximate causation," which means that harm to the patient occurred solely as a result of the doctor's negligence. Even if there is damage that cannot be traced to your actions, there is no valid malpractice claim.

For example: A 28-year-old woman tells her gynecologist about a small lump in her breast. The gynecologist is able to palpate a 1 centimeter mass. He tells the patient she is too young for it to be breast cancer and that it is most likely a cyst. He advises her to return in six months. The patient returns, and there is no change in the mass. The gynecologist says it must be fibrocystic disease and advises her to return in six months. By that time, the mass is 2 cm. The gynecologist then refers the patient to a surgeon, who biopsies the mass and determines that it is a poorly differentiated carcinoma. The failures to make early recommendations for a biopsy, mammogram, and visit to a surgeon constitute a deviation from good and accepted practice.

But did they cause any damage? A oneyear delay in diagnosing breast cancer may have allowed it to metastasize. But what if the delay had been only one month? In this way, a proximate-cause defense requires a jury that's willing to be educated by lawyers and experts regarding the medical issues.

A legal assessment of damages includes both economic and non-economic factors. Economic damages typically include the medical costs of additional treatment, hospitalization, and physician expenses. …