If there is no damage, there is no malpractice

August 1, 2008

If damages cannot be traced to your actions, there is no valid claim of malpractice

Key Points

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.

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. They may also include loss of earnings - which, especially in wrongful-death cases, can be very substantial.

Consider a 40-year-old male earning $30,000 per year who dies as a result of malpractice. The patient is survived by a wife and two minor children. The economic damages would equal approximately 25 years of additional work life multiplied by $30,000 per year, for a total of $750,000. Economic damages may also include "loss of services," which can be claimed by the spouse and/or the child. Though it's difficult to place a dollar amount on such damages, a minor child's loss of a parent or a parent's loss of a child will certainly invoke the sympathy of a jury.

Non-economic damages refer primarily to the ever-dangerous element of "pain and suffering." Punitive damages, meanwhile, are possible only if willful, wanton, and reckless disregard for the patient can be proved, and such instances are very rare.

Lee Johnson is a healthcare attorney in Mt. Kisco, NY, specializing in risk-management issues. She can be reached at lj@bestweb.net. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com
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