Mar 11, 2019
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To Sue Or Not to Sue?

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In the course of my work as a medical malpractice attorney here in Phoenix, I meet and speak to many people who want to know if they have a malpractice case or not.  Despite the fact that many of these people have received substandard medical care, the answer is almost always that they do not have a case.  The reason they don’t have a case is that a case requires more than substandard medical care.  Given the roadblocks erected by the state legislature and the reluctance of juries to hold doctors responsible for their mistakes, only the clearest and most egregious mistakes which result in catastrophic injuries have a chance of resulting in a winning case.  We are forced to turn down over 100 prospective cases for every one we can take.  In our office and in the offices of other competent malpractice lawyers, there are no frivolous cases.  Every case which is brought has been carefully vetted to make sure it is meritorious.

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I am always interested in what made people decide to speak to an attorney about whether they have a case or not.  The statistics are clear that most people who have been the victims of medical malpractice do not make a claim.  Most do not ever consult a lawyer about whether they have a claim or not.  Here is a recent story about a couple that decided not to make a claim.  It is not clear whether they spoke to a lawyer about suing or not.

According to the story, the husband was having terrible low back pain and saw an article about epidural nerve blocks being used to provide relief from this type of pain.  An epidural nerve block involves an injection into the space just outside the spinal cord where the medication blocks the pain signals being sent by the low back nerves to the brain.  They selected a doctor who explained the procedure and told them the injection would be done under fluoroscopic control.  Fluoroscopy allows the doctor to see the tip of the needle and make sure it is in the right place before completing the injection.  Unfortunately, as soon as the needle entered the husband’s back, he became completely paralyzed below the waist.  An MRI done immediately afterward failed to show anything significant that might explain the paralysis.  A second MRI the next day was similarly unhelpful.  After conducting some medical literature research, the treating doctor found some articles that described similar paralysis during nerve blocks as the result of an anatomical abnormality.  He thought this might explain what happened.  Ten years later, the husband has had some limited improvement but remains badly damaged.

According to the wife, “We explored suing, but exploring is as far as we got.”  They decided not to sue.  After all, the doctor did not intend to injure the husband and if a doctor is sued, doesn’t that just make them afraid of openly communicating with their patients?  Doesn’t suit just make things worse for everyone?  I don’t believe it does.

If this couple had come to see me, I would have asked for the patient’s medical records and would have reviewed them.  On the basis of the limited description of events in the news article, this does not appear to be a case of malpractice.  The doctor explained the procedure and obtained the patient’s consent.  The doctor performed the injection under fluoroscopic control and the injury occurred as soon as the needle penetrated the skin.  According to the story, the needle never even reached the area of the spinal cord.

Sometimes bad things happen for no apparent reason.  When they do, doctors are left scratching their heads.  Without strong proof that the doctor made a mistake he should not have made and that the mistake caused a serious injury, there can be no malpractice case.  Here, while there is a serious injury, there is no evidence in the story that the doctor made a mistake.

I believe that doctors and hospitals should be held responsible when they make mistakes that injure patients.  They should admit those mistakes and try to make it up to the patient.  It is not fair to the patient to be told that he or she must just suck it up for the good of society.

 



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