Question: Do I have a case as this doctor should have never used that much hardware and I should not be in this much pain after 3 years?
Today’s question is one I am often asked by potential clients. Most trial lawyers know the answer to this question is a simple and straightforward no. It’s no different than when a case is lost because a jury believed the opposition. A bad result doesn’t indicate the quality of the work that went into the repair effort. But clients are laypeople and they hope that by pointing out what they see as a bad result will entice a lawyer to jump onto the unproven conclusion that a bad result somehow proves the doctor must have done something wrong. We are lawyers, not rescuers, we try cases with evidence, not just a hope and a prayer.
But clients get told the truth and sometimes the truth is not supportive of filing a claim; at least not based on a potential client’s angst. Before you get too upset let us not forget there is a second human being involved in this relationship. So allow me to get to today’s point. This is probably one of those cases so today let’s ferret out the proof problems as we weed out the assumptions this potential client makes.
Definition of FERRET OUT
: to find or uncover with keen, diligent, crafty, or shrewd search <ferret out the enemies of the country> <ferret the facts out after hours of painstaking examination of records>
To understand what’s wrong with the patient’s ultimate conclusion of malpractice you must first get it firmly planted in your mind that a bad result does not equate to a bad surgery or a bad technique or a bad surgeon. So let us read the question detail.
Question Detail: I had surgery in 2010 on my right ankle. The doctor put 13 screws and 2 metal plates in my ankle. In May of 2011, the hardware backed out and when the doctor went to remove the implant the ankle broke for the second time. I have been in pain for the last 3 years and started seeing another doctor for a third opinion. He stated we needed to take the hardware out and redo this because he did not align my ankle right and he used way too much hardware.
Answer: My guess is you had a very bad break involving the ankle joint and the bone did not heal, a complication that is not uncommon in people that smoke or are older and have low bone density. Prescription drugs taken by a patient can also interfere with the healing process. What patients many times fail to appreciate is that their own behavior or their personal situations can complicate a surgical procedure's outcome and rate of success. From the little known so far there is no reason to blame anyone for the poor outcome. But let’s us look at the assumptions you are making that as lawyers we are not permitted to make.
- The doctor didn’t know what he was doing.
- There was a better way to fix the broken bones in the ankle.
- Too much hardware was initially used.
- The hardware backed out and that has something to do with what was done or not done by the orthopedic surgeon.
- The misalignment of the now semi-fused bones is the fault of something the orthopedic surgeon did or didn’t do.
- The hardware was left in too long.
- You painful condition for an extended period of time somehow makes this a better case.
- The second doctor is criticizing the technique of the surgeon who initially repaired the ankle.
- The bone did not heal properly due to something the first surgeon did.
- A bad result is somehow an indication of medical malpractice.
Each of these assumptions is erroneous and can add-up to this potential client wanting the lawyer to get excited about suing the doctor - which with me isn't going to happen. But seasoned trial lawyers do not get excited very often and this fact-set will never get any lawyer very excited. Here is why.
ASSUMPTION 1: The doctor didn’t know what he was doing.
WHAT IS WRONG WITH THIS ASSUMPTION? This is not something we are permitted to assume, but must prove by way of an expert opinion. Another qualified surgeon would need to review the records, read the surgeon’s explanation (depositions) and evaluate all the known facts. Only then can anyone say the original surgeon did something wrong. But let’s assume another doctor disagrees with what was done; we still haven’t proven anything because the ‘mistake’ can be something amounting to just a difference of professional opinion or judgment. It might also be a mistake that if made has nothing to do with the result. There must be evidence to prove causation. And so far there is no evidence of that.
ASSUMPTION 2: There was a different way to fix the broken bones in the ankle.
WHAT IS WRONG WITH THIS ASSUMPTION? A different way may or may not have existed at the time of the surgery, but even so how does different necessarily translate into a better result in a badly fractured ankle joint? I can argue either side of this point, but still it’s the Plaintiff’s burden to prove it and if the Defendant can argue equally that a different technique would not have changed the result you lose.
ASSUMPTION 3: Too much hardware was initially used.
WHAT IS WRONG WITH THIS ASSUMPTION? This is an area for expert opinion testimony and we are a long way from being able to make this assumption. Too much, maybe too little hardware was used. Or maybe the ankle break was so severe no amount of hardware would have saved the function and lessened the pain three years later.
ASSUMPTION 4: The hardware backed out and that has something to do with what was done by the orthopedic surgeon.
WHAT IS WRONG WITH THIS ASSUMPTION? What activities have you been doing for the past three years? How many miles have you walked, ran or biked? Have you been on uneven ground? What medications have you been taking for the past three years? All of these facts can influence or cause implanted hardware to back out after the screws loosen. Did I ask you if you’ve been involved in any other accidents? Have you slipped and fallen on the ice? Hiked? As you can imagine we are a long ways away from being able to pinpoint the actual causes of why the screws loosened up. And have I told you this is a known complication of this hardware? It is, so it may not help even if we can prove it.
ASSUMPTION 5: The misalignment of the now semi-fused bones is the fault of something the orthopedic surgeon did or didn’t do.
WHAT IS WRONG WITH THIS ASSUMPTION? This is such a vague argument that it’s really not worth the time to make it. An expert would need to be asked whether there is anything he would recommend that would have produced a better result and even that isn’t proof what was done was wrong.
ASSUMPTION 6: The hardware was left in too long.
WHAT IS WRONG WITH THIS ASSUMPTION? Again, this is the area of expert opinions and since most lawyers don’t perform surgery it’s beyond their expertise to know what is or isn’t ‘too long’. From what I’ve seen over the past 30 years there is no clear answer of when to remove the hardware except the patient’s complaint of pain.
ASSUMPTION 7: Your painful condition for an extended period of time somehow makes this a better case.
WHAT IS WRONG WITH THIS ASSUMPTION? It doesn’t unless you can ever reach the issue of damages. Pain has little if anything to do with evaluating the issue of liability.
ASSUMPTION 8: The second doctor is criticizing the technique of the surgeon who initially repaired the ankle.
WHAT IS WRONG WITH THIS ASSUMPTION? When one doctor expresses a different opinion about how a patient’s condition should now be treated, it isn’t necessarily criticism of another surgeon. It’s simply a different opinion about what to do.
ASSUMPTION 9: The bone did not heal properly due to something the first surgeon did.
WHAT IS WRONG WITH THIS ASSUMPTION? Go back to the questions I raised above in assumption number 4. Prescriptions taken, other accidents, activity level, specific activities participated in and many other facts can influence the outcome.
ASSUMPTION 10: A bad result is somehow an indication of medical malpractice.
WHAT IS WRONG WITH THIS ASSUMPTION? Do you understand now? You can’t make this assumption. It’s a conclusion, not a fact.
As you can see what lawyers do isn't easy.