There will be cases where the lawyer representing a physician in a medical malpractice lawsuit would be certifiably insane if he or she sincerely believed the physician did not cause the victim’s–the plaintiff’s–injury. Even in these cases, it would not be unusual or shocking to see the physician’s attorney parade out some defense. We’ll look at some defenses, 11 traditional ones, that the attorney might use.
Not all of these defenses apply to each and every medical malpractice case–for instance, defenses related to misdiagnosis might not be relevant to a medical malpractice cases that center around a surgical error–but don’t be surprised if the physician’s attorney relies on one of the eleven defenses on the list.
The physician’s attorney might argue:
- Neither action nor inaction of the physician caused or contributed to any injury or damage to the plaintiff.
- The plaintiff would have had the same outcome whether or not the physician was involved in the plaintiff’s treatment, because no one could have prevented the outcome.
- The conduct that caused the injury to the plaintiff was not the conduct of the physician; it was the conduct of other medical personnel, the plaintiff, or someone else.
- An acceptable school of medicine was followed by the physician.
- The plaintiff had an underlying pre-existing condition that made the medical outcome unavoidable.
- The plaintiff saw consulting medical specialists at the physician’s request, considering the plaintiff’s confusing signs and symptoms.
- The physician’s clinical judgment (the thinking process for analyzing data, deriving diagnoses, deciding on interventions, and evaluating care), based on the complex or emergency situation presented by the plaintiff’s medical condition, conformed to the standard of care.
- The surgical procedure’s complexity and the risks associated with the procedure led to the plaintiff’s injury. If a surgeon performs many of these procedures, a complication similar to the plaintiff’s complication will, sooner or later, arise without any negligent conduct by the physician.
- The plaintiff’s death, caused by a rare disease, was not preventable. And regardless of the time of diagnosis of the disease, the plaintiff’s death would have likely occured.
- The physician failed to diagnose the plainitff’s disease because the plaintiff did not have the disease’s typical signs and symptoms, or because the plaintiff had signs and symptoms that masked the plaintiff’s real medical condition.
- Other physicians who had a better chance of making the diagnosis had been unable to make the correct diagnosis because it was the very challenging diagnosis to make.
If you have not yet started a lawsuit and are contemplating bringing one, call me. I can answer your legal questions and would love to talk with you. You can reach me at 410-513-9978 or by email at firstname.lastname@example.org.