“Loss of Chance” Becomes a Cause of Action for Medical Malpractice

Posted on behalf of Rizk Law on May 17, 2012 in Medical Issues

If you have ever suffered at the hands of doctors who denied you better treatment options, you may now have a valid medical malpractice case. The Oregon Supreme Court ruled this month that patients can bring medical malpractice cases in situations when the negligent care denied them a treatment or procedure that could have had a better outcome than the treatment that was given. This takes medical malpractice beyond cases of simple negligence-induced injury.

Naturally, physician groups protested. The Oregon Medical Association and the American Medical Association filed a brief asserting that allowing loss of chance cases would drive up the number of malpractice lawsuits, medical malpractice insurance premiums, and push doctors to practice what is called “defensive medicine.” Are these concerns genuine?

Defensive Medicine and the Rise of Healthcare Costs

I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone.”

Defensive medicine is a natural enemy of dedicated physicians who uphold the Hippocratic Oath. This approach to medicine is one in which physicians and other healthcare providers consider the possibilities of litigation in their methods. The purpose of defensive medicine is to avoid litigation; when treatments and procedures are done with the consideration of a possible lawsuit rather than the patient’s best interests, we have a problem. Actually, defensive medicine gives rise to three big problems:

  • Increased health risks to patients
  • Increased price of healthcare
  • Degradation of trust between healthcare professionals and their patients

When patients are subject to defensive medicine, there is the potential for unnecessary treatments and procedures. Doctors may run unneeded tests, prescribe medications when they are not necessary, and perform invasive procedures without an absolute need. They also may be prone to needlessly hospitalize patients to give the impression that they are doing their jobs. All this unnecessary medical attention could easily drive up the costs of healthcare for individuals.

At the same time, defensive medicine can swing the other way and deny patients options that could really benefit in the long run, as in the case of Joseph Smith, whose medical malpractice case is the one on which the state Supreme Court’s new ruling was founded. Ironically, these types of personal injury claims can rise if doctors try too hard to avoid litigation.

How an Undiagnosed Stroke Changed Medical Malpractice

Mr. Smith entered a Hood River emergency room in 2011 believing he was experiencing symptoms of a stroke. Not thoroughly convinced of his self-diagnosis, doctors sent him home without ordering an MRI or prescribing clot-reducing drugs. Smith returned the next night with continuing symptoms and was sent home with painkillers. Finally, he made an appointment with a family physician at Hood River Medical Group, who did not expedite an MRI.

After being denied care, he suffered significant brain damage and sued on the basis that had he received adequate care he would have avoided the consequences of a stroke. Smith’s lawyer argued that the negligence he was subjected to cost him the chance of receiving a treatment for which there was a ⅓ chance he could have significantly recovered with little to no negative effects.

The Multnomah County Circuit Court rejected the argument on the grounds that “oss of chance” is not a cause of action for medical malpractice claims in Oregon. Attorneys appealed but the appellate court sided with the circuit court. The case eventually made it to the Oregon Supreme Court, which addressed the matter of whether or not a loss of chance case can be pursued in court and not Smith’s actual complaint. Citing no evidence to confirm the physician groups’ claims that these cases will increase healthcare costs or the number of lawsuits, the decision was made in favor of Smith’s complaint.

Before the stroke, Joseph Smith was a weightlifter and a restaurant manager. Since then, he is struggling to hold down low-level jobs. Smith seeks compensation for lost wages as well as noneconomic damages./p>

A 1 in 3 chance of beating an illness that could significantly harm your future is a chance most of us would take. If you or someone you care about has been injured as the result of being denied treatment opportunities, talk to a Portland personal injury lawyer from Rizk Law today.