How to Address This Common Med Mal Defense Tactic

A common defense in medical malpractice cases is that the patient did not follow up as instructed or seek a second opinion.

There’s a simple way to address this: Look for evidence that would have reassured the patient nothing was seriously wrong.

This could come from the fact that the patient went to various appointments for their symptoms and was misdiagnosed. How many times do you need to be told it isn’t something to worry about before you just stop going to the doctor?

Another source could be the medical records themselves.

In a current case I’m working on, my client went to three separate ERs over a five-day period for a severe headache that existed for three weeks. In addition to swelling on her forehead, she had various concerning lab results (like elevated WBC, and high CRP and sed rates, among others).

In her second ER visit she was given discharge paperwork that told her even though the cause of her headache wasn’t clear, “it doesn’t seem to be a sign of any serious illness.”

As it turns out, it was something serious. Tragically, she had a brain infection and died of a brain abscess a few weeks later. Nobody told her she needed to be checked because it could be something serious. Nobody told her she could have an infection in her brain (of course if they did think that they should have done additional testing instead of sending her home). To make matters worse, they affirmatively told her it wasn’t anything serious.

When the defense blames your client, ask yourself why your client may have done what they did (or didn’t do). Look for reassuring statements or other evidence that may have led your client to not seek a second (or third or fourth) opinion.

Not only will this explain your client’s behavior, but the defendant also tends to look bad when they are blaming your client for behavior that they induced.

What do you think? Join the conversation with me on LinkedIn.