In litigating and trying medical malpractice cases, there are some common defenses that come up almost every time. Here is a list of the seven most common defenses and what a plaintiff must do to overcome the defense and win the case.

1. The Doctor was Exercising Their “Best Judgment”

The law defines medical malpractice as something that “no reasonable doctor would do under the same or similar circumstances.” Consequently, if the defense can show that a reasonable doctor might have employed the same approach as the defendant, then, by definition, the plaintiff cannot prove malpractice. In practice, the defense often attempts to define the medical issue in the case as one that incorporates individual physician “judgment.” If something is a “judgment call,” then, the argument goes, a different “judgment” is also reasonable.  If it is reasonable, then it cannot be negligent.

For instance, if an electronic fetal heart rate monitor shows that the baby’s heart rate is dangerously low, there may be a question as to whether mom should be taken for an emergency C-section. If the decision is merely a matter of “judgment,” then a delay in C-section would not be malpractice, because one physician exercising judgment may decide that a C-section is required, but another may not. In other words, at least some “reasonable doctors” would not have moved to C-section. This is the way the defense would prefer to frame the issue.

To overcome the “judgment” defense, the plaintiff must show that there are certain circumstances that are not a “judgment call.” That is, there are situations where there is only one safe and reasonable choice for the patient—any other choice is not reasonable. Thus, it is not a matter of “judgment,” it as a matter of “right and wrong.”

2. Doctors Make Decisions in “Real-Time,” Not with the Benefit of Hindsight

Malpractice defendants often try to characterize a plaintiff’s claim as playing Monday morning quarterback. Any criticism of the medical care, they say, is distorted by the fact that it is easy to know what choices to make when you already know the patient’s outcome. It is unfair, they claim, to hold a doctor responsible based upon such information about the bad outcome—information that was unknown to the doctor in “real-time” when he or she was making medical decisions.

No one can predict the future. However, foreseeing how medical decisions might impact the health and safety of a patient is part of a doctor’s job. Thus, when a patient presents with shortness of breath and coughing up blood, and later dies of a pulmonary embolism, no reasonable doctor can say that such an outcome was unforeseeable. Although the doctor did not know that the patient would go on to die from a PE, the doctor is charged with knowing the common signs and symptoms of a PE, as well as what tests and treatments should be undertaken to protect the patient from this harmful result.

3. The Harm was a “Known Risk” of the Care or Procedure

When something is a “known risk,” that means it can occur even in the absence of negligence.  For example, it is a risk of any surgery that a patient might develop a post-surgical infection.  However, a bad outcome that is a known risk can also occur because of negligence. For cases involving known risks, the plaintiff must be able to show evidence that the harm occurred because of negligence and not merely because the plaintiff was unlucky enough to have suffered an ordinary complication of the medical care.

4. The Patient Brought This Upon Themselves Based Upon Bad Lifestyle or Medical Decisions

This is the classic “smoking defense” which we wrote about in a previous article—that is, the defense that the plaintiff was a smoker, overweight, failed to exercise, eat a healthy diet, or seek regular medical treatment.  As discussed in a previous article, to the extent these are merely circumstances necessitating the need for medical care, the law prohibits the defendant from asserting a comparative fault defense based upon plaintiff’s past lifestyle or medical choices.  The doctor must act reasonably and meet the standard of care to the patient as the doctor finds the patient.

5. The Patient Did Not Provide an Accurate History

Malpractice defendants often argue that they were deprived critical information that prevented them from making a correct diagnosis, because the patient failed to tell them.

For instance, take the case where there was a delayed diagnosis of cauda equina syndrome—injury to the lower spinal cord—resulting in paralysis. Assume that the patient told the doctor that she had lower back pain with numbness and tingling into her legs and feet. During the case, the patient admitted that she also had some urinary incontinence, but apparently had not thought to mention that to her doctor.

Had we known about the urinary symptoms, the defense protests, we would have considered cauda equina syndrome and tested her for that. The urinary incontinence suggests a neurogenic bladder caused by spinal cord injury.  “But she didn’t tell us about it!”

It’s important to keep in mind, however, that patients rarely know what specific information is important to the doctor.  An ordinary person, for example, might have no clue that urinary symptoms relate to lower back pain. It is the doctor’s job to ask focused questions to elicit the aspects of the patient’s history germane to evaluating the patient and determining a diagnosis. If the doctor asked the patient about urinary symptoms and the patient denied them, that would be one thing.  But if the doctor did not ask the question, then the doctor cannot later argue that it was the patient’s fault for not volunteering the history.  It was the doctor’s fault for not taking an appropriate history.

6. What Matters Is the Care Itself, Not the Documentation of the Care

Malpractice cases revolve around the medical record because it is often the most comprehensive and reliable contemporaneous account of what happened.  That advantages the defense significantly.  After all, the medical chart is a one-sided story told entirely by the doctors and hospitals who maintain exclusive control over the chart. Patients and their families are not permitted to contribute to or edit the medical record.

Moreover, modern electronic medical records are designed by hospitals to create the appearance of a more robust process than exists.  The nurse or doctor may check a single dialogue box, which auto-populates numerous fields of the chart, making it look as if there was a painstaking review of each item listed.  The nurse or doctor may have simply asked a broad question, like “do you have any other symptoms at this time?”  There are many other examples of situations where the electronic medical record reflects more comprehensive documentation than what occurred during the patient encounter.

Yet, despite the advantage the record provides to the defense in every case, it is common for the defense to attempt to introduce facts that are not reflected in the chart.  Perhaps there is nothing in the chart that shows that the doctor examined the patient’s pulse, but the doctor testifies, “I always take a pulse, but only document it if it is abnormal.” Since, they claim, the doctor did take a pulse, but just failed to chart it, the defense characterizes the plaintiff’s argument as merely “a criticism of the documentation, not the underlying care.”

There are different approaches to dealing with this “mere documentation” defense. First, it is important to establish that when it comes to medical care, documentation is not just a clerical formality, but it affects the quality of the care itself. The purpose of documenting in the medical chart is to allow other medical providers to understand the patient’s history and important clinical data, so that correct decisions can be made based upon that data. Where the data is incorrect or incomplete, it may lead to erroneous decision-making that can be dangerous to the patient. Additionally, there may be evidence that the medical provider is embellishing or lying about actions taken that are not documented in the chart. It is, after all, awfully convenient that the single critical fact germane to the case happens to be one that is omitted from the chart.

7. The Plaintiff’s Experts Do Not Understand How Medicine is Practiced at Our Community Hospital

Because doctors who practice in Maine are typically unwilling to serve as medical experts against other in-State doctors, the plaintiff’s experts invariably practice medicine in a different state. The defense seizes on that to argue that these experts and unfamiliar with how medicine is practiced in Maine, particularly if the case involves rural medicine or a community hospital.  In response, it is important to highlight that most medical standards are national standards, and the standard of care is no different in Maine than it is in Massachusetts, Ohio, or Maryland.  When the defense criticizes the plaintiff’s expert for endorsing a standard of care that they do not want to accept, what they are really saying is that Mainers don’t deserve the quality of medical care that people expect elsewhere. We say that Mainers deserve safe and reasonable medical care just like people in other states.

Discuss Your Case With an Attorney Today

If you need legal guidance with your medical malpractice case, do not hesitate to contact Gideon Asen LLC today. Our lawyers have extensive experience litigating against these types of defenses, and can help you acheive a favorable outcome to your case today. Call to set up your consultation today.