Negligent Omissions In Medical Malpractice

The possibility of medical malpractice is usually investigated after the fact by searching for wrongful acts on the part of the doctor or hospital. Many times wrongful conduct in the practice of medicine is not seen by something that was actually done wrong in a positive sense but by something that wasn’t done right in a negative sense. Failure to investigate negative acts, i.e. acts of omission, is a big mistake and will cause many a meritorious case of medical malpractice to be missed.

Most times a medical malpractice case is born out of a familiar scenario where a victim or a loved one to a victim comes to family lawyer. The victim has very little concept of medical or legal principles and the family lawyer isn’t all that much ahead of the victim. The victim will almost always come in complaining because of a bad result of some sort. It is the bad result that prompts the victim to seek legal assistance. At this point in the game no one really knows if there was medical malpractice because bad results can occur in the absence of bad medical practice. Bad things can just happen sometimes. The lawyer will first hear the story where it emphasizes things that were perceived as having been done wrong. This makes sense because it is these visible acts that a victim or family member can grab on to and try to expand upon.

The practice of medicine though is so complicated that this approach will many times cause medical malpractice to be missed. This is so because the standard of care not only applies to performing acts properly but it also applies to the fact that acts should be pursued or avoided to begin with. This is more subtle. Take for example the case where meningitis is missed in the emergency room and the patient is sent home only to die within 24 hours. The E.R. records may often show that the physical exam that was done was normal. The more subtle investigation would include whether parts of the physical exam should have bee expanded upon that perhaps would have discovered the diagnosis and whether the basis for such an exam was present in the first place. Or perhaps normal findings from the exam should have been pursued more fully given the clinical findings as testing can easily be inconsistent with real life. Too many times it is forgotten that the very purpose of having a doctor is to over ride the testing. After all, if we accept the answer that the test was normal as final then why do we need doctors?