An honest mistake, within the standard of care, will not result in a finding of liability.

Abstract

Several aspects of Davidson's premise in his description of a medical accidents do not fairly and adequately explain or represent the majority of cases of medical negligence. It is worth noting that a natural tension exists between the plaintiffs bar (those representing the patients) and the medical community, some of which is real and some of which has been overstated. One such overstatement is that the premiums for medical malpractice insurance are increasing as a result of jury verdicts that are out of control. The true cost of medical malpractice is only a few cents of every medical dollar. The professional liability insurance companies have tried, quite successfully, to overstate the true effects of medical malpractice awards in an attempt to keep premiums, and thus, profits very high. At the outset of his article, Davidson uses the word “accident” and goes so far as to define the term. I subscribe to the notion, however, that there are few true accidents. An accident is, at least for me, an unavoidable event that could not have been foreseen by a reasonable person at the time the act took place. For example, a driver looking down to make a phone call, who thus is unable to see traffic that has stopped 20 m ahead, and runs into the car in front of him, is said to have “had an accident.” Not so. This person engaged in an act that was “a foreseeable consequence of inattention.” Thus, I use the word incident (a more neutral term) to describe most events that cause injury. Most cases of medical negligence our legal firm has handled involved acts in which the harm could easily have been foreseen and the doctor's failure to prevent the harm was the cause of injury. One example is the dentist who poured a paper cup full of isopropyl alcohol for use in sterilization and left the cup on the patient's tray next to an aspirin. Another example is a doctor who, despite realizing that a patient had hypoxia 3 weeks post partum, did not consider the risk of embolism and did not perform any test to determine the level of blood gases. The patient died of a pulmonary embolism. The list can go on. But here's the bottom line. The legal community often, in seeking redress for the victim or the victim's family, is sending another, louder message. Be careful. Yes, mistakes happen, but an honest mistake, when it is within the standard of care, will not result in a finding of liability. Davidson refers to the jury's determination of guilt or innocence. In reality, juries in civil cases make no such judgments. The verdict is simply whether or not the doctor was negligent. It's that simple. In California, at least 70% of all cases of medical negligence end in a verdict in favor of the doctor. Does Davidson believe that the jury system is broken when 70% of the cases that are tried to juries turn out in favor of the doctor? The standards of care are never that easy to define, but it is overly simplistic to suggest that the plaintiff's lawyer is capable of outgunning the doctor's lawyers and experts. Far more often, the attorney for the plaintiff is confronted with experienced attorneys who have at their disposal the best in the medical community who are happy, for a price, to step forward and proclaim the “innocence” of the unfortunate doctor. I prefer to believe that the medical community and the plaintiffs bar are united in the common ideal of providing competent medical care and thus holding responsible those who engage in conduct below the standard of care. I have always viewed the role of the attorney as trying to prevent injury much as the medical community strives to prevent illness. Medical malpractice is inevitable, but practicing within the standard of care offers more than a safe harbor for medical negligence claims, it offers protection for your patients.