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Primum non Nocere (Do No Harm)

doctors looking concerned after an accident in the operating room

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Art of the Arm by DJ Lynn

The 2000-year-old Hippocratic oath has been out of fashion for a while. Is it even possible to “first, do no harm”? Doctors consistently overvalue benefits and discount harms. Evidence suggests that we all tend to do the exact opposite. We err on the side of intervention, regardless of the harm.

Well, it seems like obvious negligence to me and I’m angry.  The doctor knew my arm. The doctor should have known that my arm, that had not strengthened enough from the prior surgery, was not ready for another surgery. In my opinion now—looking back, a dexa should have been done prior to my second surgery or perhaps just a re-look at new X rays with a different eye to what might go wrong. It was probably just that simple—just take a new look from a different perspective.

The information was there in my doctor’s own notes from the first surgery and the X rays from six months ago. The bones in the area of the arm had disuse osteopenia which had weakened them. Had the second minor surgery been postponed for another year or so and my arm bones and muscles allowed to strengthen, the break of the distal humerus in the second surgery probably wouldn’t have happened.

So, I told all that to several attorneys. They all said basically the same thing. Yes. They all agreed based on what I was telling them, that it seemed like the care I received fell below “applicable standards of care” (did or failed to do something a reasonable and prudent healthcare provider would or would not have done under the same or similar circumstances). Technically, I have a lawsuit, but …

It also must be proved that the negligence caused the injury. No lawsuit is relevant unless harm occurred because of it. It could be argued by an expert witness that my arm was already damaged and therefore weak (even though the doctor during surgery, broke the arm in a different place).

And finally, there has to be significant economic damages and if these numbers aren’t high enough, it’s not worth it for an attorney to be get involved.

Medical malpractice occurs when a health-care provider deviates from the recognized “standard of care” in the treatment of a patient. Would another doctor have done the same? All hospitals and doctors have a team of lawyers and expert witnesses that can put down any malpractice argument that comes their way. They’ve seen and heard it all.

Researchers with the Clinical Orthopaedics and Related Research journal compiled twenty years of data of medical malpractice outcomes to examine the correlation between suspected patient injuries, lawsuits, and awarded compensation. According to their findings, physicians win 80% to 90% of jury trials with weak evidence of medical negligence, approximately 70% of borderline cases, and 50% of cases with strong evidence of medical negligence.

In regard to the plaintiffs who won their cases and the reported data, 5% received a payout for diagnostic or treatment errors, 13% received a payout for surgical or procedural errors, and 27% received compensation for medication errors. Based on those results, it can be challenging to build up the nerve to file a case. When you spend money and time on a lawsuit, you expect it to go in your favor. If it doesn’t, you may be in an even worse place financially. 

The bottom line from all the attorneys was that yes, it was negligence – shouldn’t have happened but collecting on that would be very expensive to prosecute and highly unlikely to win in the end. The doctor’s attorneys would not likely settle. The doctor and hospital attorneys would take it all the way to trial. And that means a lot of additional expense for the law firm plus at least three years of time (that the hospital lawyers would drag out as long as possible).

Perhaps, if I were 35 or even 45 and a high-income earner and my ability to earn and support my growing young family had been greatly impacted permanently, then maybe they would have taken the case. 

Still, it doesn’t hurt to ask. Review your case here.

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