July 9, 2019

When your Doctor Flip-Flops

We are one of the few firms that welcomes medical malpractice cases following sweeping changes to the law that made these cases more expensive and more time consuming. When we consult with potential new
clients on a medical malpractice case, we often hear something similar to the following: “I went to another doctor, Doctor XXX, afterward and they told me this was medical malpractice, that I should hire an attorney, and they would testify for me.”

In truth, we have never had all of these statements turn out to be true on further investigation. It’s not that the client is being dishonest with us—and many times one or two of the statements is true—but we have never seen all three be true.

Why? Well, believe it or not our medical community is small. Many doctors do not want to involve themselves in litigation against another doctor they may see at the hospital, serve on a board with or know through the community. Unfortunately, you rarely see a doctor put the word “malpractice” in their records. In other cases, the clients may just genuinely misunderstand what the doctor tells them in the first place.

Clients are often confused when they tell us their new doctor will testify for them and we don’t jump for joy. The truth is, your second doctor is rarely as cooperative with your case as you might think. For certain, they can be of help. However, our practice is to retain out-of-state medical experts for your case to assure we have a doctor who will not pull his or her punches, so to speak. Also, we have yet to see a case where the doctor admitted the malpractice. In one notable case, Capanna v. Orth, 432 P.3d 726 (Nev. 2018), the doctor actually operated on the wrong spinal level. Several doctors, including his own defense experts, testified that he did but the doctor would not admit it. Ultimately the doctor was sanctioned for not admitting what was obvious, but it goes to show that (1) a doctor will rarely admit a mistake and (2) the opposing attorney will always find some “defense” to make you file a lawsuit. In another case, the doctor left an unintended foreign object in the body (a piece of a cervical cerclage) of a patient, which was obviously malpractice. He defended by stating that he realized he could not locate all of the cerclage to remove it (a dubious claim, it appeared he just didn’t realize he didn’t remove it all) but made a decision without the patient’s consent to leave it in her cervix. Therefore, we could not argue it was an “unintended” foreign body. The doctors always raise some defense in even the simplest of cases.

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