Legal Advisor

Mrs R be admitted to the hospital for pain medication and physical therapy but advised that nothing should be done surgically.

A few days later, Mrs R was admitted to a physical rehabilitation institute for continued physical therapy and treatment, which consisted of stretching , strengthening, and range of motion exercises as well as bone stimulation. According to the rehabilitation facility, she made progressive improvements and was discharged 2 weeks later.

Some months later, Mrs R filed a medical review board complaint alleging medical malpractice by Ms W and Dr T for her treatment at the first hospital. The medical review panel found the defendants did not breach the standard of care or cause the damages Mrs R alleged and dismissed the complaint.

Mrs R then filed a lawsuit against Ms W and Dr T in state court.

Legal Background

The defendant clinicians made a motion for summary judgment asking that the case be dismissed. A hearing was held and the trial court dismissed the case. Mrs R appealed. On appeal, the appellate court was asked to decide whether dismissing the case was a proper action by the lower court.

The court noted Mrs R would have the burden to prove 3 things at trial: • The standard of care • That the defendants breached that standard of care • That a causal connection existed between the defendants’ breach and the patient’s alleged injuries

The court pointed out that the only thing Mrs R presented at the hearing on the summary judgment motion was the affidavit of a Dr O. In his affidavit, Dr O stated that the standard of care for an older patient who presents with continued pain in the pelvic and hip areas despite negative radiographs is to order a CT scan or magnetic resonance imaging (MRI) of the pelvis to detect fractures that radiographs may miss.

He also said that, in his opinion, Ms W and Dr T had breached that standard of care by not ordering a CT or MRI of Mrs R’s pelvis. This is evidence that supports Mrs R’s burden of proof for 2 of the 3 elements in the medical malpractice claim, said the judge in the decision.

Still, Dr O’s affidavit made no mention of what, if any, injuries Mrs R had experienced. At the trial, the court found nothing in the affidavit to show that the breach of standard of care was linked in any way to the patient’s injuries.

In fact, Mrs R never alleged that she experienced any injuries at all from the 2-hour delay in her diagnosis. This was a flaw in her argument: if there are no injuries, there is no medical malpractice case. Even if the treatment by the practitioners had fallen below the standard of care, if it did not result in injuries that could be causally tied to the breach, then there is no valid medical malpractice case.

Protecting Yourself

It is extremely important to be familiar with the 4 required elements of a medical malpractice case: • A duty owed to the patient • Breach of that duty (of the accepted standard of care) • Injury caused by the breach • Damages

Without each of these elements, a medical malpractice case will fail. Litigious patients sometimes mistakenly believe that just because a clinician made an error there is ground for a malpractice case. Without the other required elements, simply making an error (such as failing to order a CT or MRI for the patient) does not rise to the level of medical malpractice. ■

There was nothing in the affidavit to show that the breach of standard of care was linked to the patient’s injuries.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.