SUMMARY Where unexpectedly adverse outcome is the sole source of complaint, analysis starts with basic medical science. The medical expert witness needs to be directed to the circumstantial evidence of substandard care. Documentary evidence of substandard care is commonplace. Suspicions of medical negligence must be both validated AND checked for Causation.
Where unexpectedly adverse outcome is the sole source of complaint, analysis starts with basic medical science. The plaintiff may simply have disabling chronic pain after routine surgery, persistent new symptoms after drug therapy or brain damage after general anesthesia. Where s/he cannot identify specifics of substandard care, a different analytical approach is needed.
If an unexpected adverse outcome is the only reason for thinking that treatment has fallen below acceptable community standards, medical screening for viability starts with clinical pathology.
Practice PointMedical assessment of unexpected adverse outcome requires thorough scientific grounding in clinical pathology |
The medical screening first tests this particular case against the usual range of outcomes to determine what deviations from standard care might conceivably have occurred.
Of course, just because a complication is described in the medical research literature does not mean it was not in this case attributable to substandard care. Nevertheless, this is a standard medical malpractice defence that is sometimes difficult to counter.
Working from first principles of clinical physiology and pathology, the specialist in legal medicine then generates hypotheses and looks for circumstantial evidence to support or refute them. There may be documentary omission of standard history, examination or investigations, and the records frequently contain other hints.
Such evidence might include:
1) details in the pathological reports of surgically removed tissue;
2) fraudulent revisions of the medical records - even the content of the additions usually further inculpates the defendant;
3) mismatch between medical and nursing records;
4) veiled criticism by nurses or remediating physicians.
Practice PointCircumstantial evidence of substandard care is present in a wide variety of clinical record types, including some that are often withheld as being "less important" |
If such smoking guns can be found, the Causes of Action can be refined and the hypotheses tested.
The medical expert witness needs to be directed to the circumstantial evidence of substandard care. Such evidence is then 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 opinions.
Documentary evidence of substandard care is commonplace. In clinical records obtained for an action for medical malpractice, elements of arguably substandard medical care 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.
Suspicions of medical negligence must be both validated AND checked for Causation.
When the medical malpractice plaintiff explicitly identifies possible deviations from standard medical care, confirmed deviations must also be shown to be Causally related to the adverse outcome.
This would apply, for instance, if the physician failed to undertake a spinal tap or ElectroCardioGram, or misinterpreted a radiograph.
Practice PointWhen the plaintiff cannot identify specifics of substandard care, a different medical screening approach is needed |
Copyright © 2009 Electronic Handbook of Legal Medicine