Dr. Eugene “Gene” Saltzberg, MD, is a veteran emergency physician with over 30 years of experience in high-acuity care and medical education. Board certified since 1987, Dr. Saltzberg has served on the front lines of emergency departments, held leadership positions such as chief of staff at Condell Medical Center, and taught critical diagnostic reasoning at Chicago Medical School as an associate professor. A founding member of the American Academy of Emergency Medicine and a fellow of the American College of Emergency Physicians, he has contributed to national standards and ethics in the field. His real-world insight into clinical decision-making and medical accountability underscores the challenges and nuances of evaluating potential malpractice cases within modern healthcare systems.
Medical malpractice occurs when a patient is harmed due to a medical practitioner’s negligence. Error in diagnosis, prescription, treatment, and aftercare can cause injury or death to a patient. Patients may seek compensation through a medical malpractice lawsuit. However, winning a malpractice case is difficult because the burden of proof is on patients. The validity of a medical malpractice case hinges on whether the practitioner was negligent or not. Proving medical negligence is difficult. The defense might argue that the alleged error was technological or that the practitioner made an honest mistake. The physician is negligent only if they acted unreasonably. That means they conducted themselves or a procedure in a manner that no reasonable professional would have under the same circumstance. Only another qualified expert of a comparable stature may testify whether the defendant acted unreasonably or not. Expert witnesses base their analysis and recommendations on the defendant’s actions as well as the expert witness’s experience and knowledge. Unfortunately, it’s hard to find an expert witness willing to testify against a fellow medic. Moreover, they must demonstrate that the defendant could have done things differently. Demonstrating that the defendant’s actions fell below the standard of care is challenging. However, every clinical encounter is unique. While the standard of care is fixed, no two encounters or circumstances can be similar. Also, each juror may have a different interpretation of what constitutes negligence. As if proving negligence is not hard enough, the plaintiff must also establish a direct causal link between harm and negligence. The defense might argue that the plaintiff’s condition or subsequent complications, not the alleged error, caused the harm. Next, the patient must prove that the harm was so bad it caused them significant financial losses and damages. The patient must prove that the harm caused them pain and suffering, disfigurement, severe emotional damage, or loss of income and future earnings. Even in a seemingly straightforward malpractice lawsuit, such as the amputation of the wrong limb, it’s hard to identify the person legally and directly responsible. The radiologist, in writing the report, might have mentioned the wrong limb, causing the anesthesiologist to prepare the wrong limb. To stand any chance of winning a malpractice suit, an attorney must establish who is legally responsible for the fault. That demands a thorough investigation of all the actions (and persons involved) from the initial point of contact. Establishing who was directly responsible for the fault is difficult, given healthcare providers and their employees typically do not volunteer such information. Medical malpractice lawsuits are expensive. Moreover, lawyers are paid from the compensation. However, the expenses can be higher than the recoverable damages. That can limit how far and how deep an attorney can go, thus significantly impacting the lawsuit outcome. It’s not enough to have a competent attorney. An attorney must also have the financial capacity to make the strongest case possible. Also, patients should document damages, expenses, and emotional distress. It’ll help prove harm and ensure they get the compensation they deserve. An out-of-court settlement may be better if the defense offers a fair settlement. Trials can be long and unpredictable. Medical malpractice cases are winnable. Although the skills and experience of the attorney matter, it takes much more than an accomplished lawyer to win lawsuits. The expert witness must help the jury understand the medical evidence and persuade them that the harm the patient suffered was due to negligence rather than a mistake.
