For some reason my family prefaces just about everything with: Do you want the good news or the bad news?
I always chose the bad news. So, I’m going to start with the bad news here.
In order to pursue a medical malpractice case, you need two things:
1. Bad Conduct. The law says there just needs to be a breach of the standard of care that causes damages. But people like doctors. So, in reality you have to show that the doctor did something bad: operated while he was drunk, spent the night before snorting cocaine, closed before completing the surgery because he was late to play golf, etc.
2. Massive Damages. The out-of-pocket costs in medical malpractice cases are huge. It’s not uncommon for them to push $250,000. So, for there to be any recovery the damages have to be huge. That means life-changing injuries like losing a leg, paralysis or needing life-long care.
Very few of the potential cases we screen meet these requirements. If the facts don’t line up just right, it doesn’t make sense to pursue the case.
But there is at least a little bit of good news too.
If medical malpractice happens after, e.g., a car wreck, the person who caused the wreck is responsible for not only injuries sustained in the wreck but also damages caused by the medical malpractice.
That means that even though it may not make sense to pursue the medical malpractice case on a stand-alone basis, damages for the medical-malpractice can still be recover (but from the at-fault driver’s insurance versus the doctor).
Here’s how the courts have explained it:
If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner…. The rationale of the rule as applied to medical treatment is that negligent or harmful medical treatment is within the scope of the risk created by the original negligent conduct.
Lindquist v. Dengel, 92 Wn.2d 257, 262, 595 P.2d 934 (1979).
If you think you have a medical malpractice case it makes sense to check it out. But set realistic expectations. Even if it’s clear the doctor screwed up it may not make sense to pursue the case.