Medical Malpractice: Do I Have a Case? January 24, 2012

As a successful medical malpractice attorney, I receive many referrals for medical malpractice cases directly from potential clients or other attorneys. One quarter of all calls to my office ask: is this a medical malpractice case? I want to use this forum to help potential clients to understand what qualifies as a medical malpractice case. The lesson from today’s case is that medical malpractice cases depend upon the evidence in the medical records.

A Potential Medical Malpractice Case on Long Island

A Long Island man needed surgery to repair a herniated disk in his neck. A surgeon in Nassau County performed the surgery which was a success. The operation relieved the man of the excruciating pain in his neck. However, immediately after the surgery, the man experienced pain in his right shoulder. After two weeks of pain, he sought help from a new orthopedist who diagnosed a torn right labrum. He needed a second surgery to repair the injured shoulder.

To the man, the only explanation for the injury to his right shoulder was that the surgical team had injured him while he was under anesthesia on the operating table. In fact, the muscles of the body are very relaxed under anesthesia and it takes many staff members to move and position a patient. The man could have been injured due to the surgical team moving or positioning his body. Was this a case of medical malpractice?

Examining the Medical Records in a Malpractice Case

We requested the man’s medical records and reviewed them with our medical review team and medical malpractice consultants. The records confirmed and verified that the man had suffered a torn right labrum. We needed to find evidence in the record that the injury occurred during the operation.

If a problem developed during the surgery and the surgical team was aware of it, then we should have found a record of the incident. The incident could be recorded in the medical records or in a separate incident or event report. Despite receiving the complete hospital record, there was no such report on file.

In examining the outpatient records following the surgery, we did find a complaint by the man about the pain in his right shoulder, but it did not come until two weeks later when visiting a physical therapist. There was no record that he complained of any pain in the two days he spent in the hospital following the surgery.

Did the man suffer a torn labrum on the operating table? Perhaps yes. Was that malpractice? Perhaps yes. However, the medical records do not provide the evidence to support a claim of malpractice. Unless a person in the operating room came forward with new information, there was not enough to prove medical malpractice.

Clients often worry about forged records or records “cleaned up” to hide evidence. In fact, it is very hard to cover up something in a hospital record and it is usually easy to see if something has been deleted or added after the fact. A close examination of the records by our medical review team found no evidence of tampering or anything missing. (I did find evidence of false entries in this wrongful death/medical malpractice case and you can read about it here.)

The man was right to ask if he was a victim of medical malpractice. From his description, it appeared that he might have been injured due to medical negligence, but we needed the medical records to support his story with solid documentation. We retrieved the records and our medical malpractice team reviewed the file, but the evidence did not support the claim.

What is the lesson here? Even if it appears that medical malpractice may have occurred, one can only identify malpractice after reviewing the medical records with the right team of medical and legal experts.

I hope you found this information helpful. If you want to learn more about medical malpractice cases in New York, you might want to read this article.  If you or a loved one has been injured due to medical malpractice, you may want to consult a New York attorney experienced with medical malpractice cases. I would be glad to answer your questions and assist you. The consultation is always free. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New York Law Thoughts.

Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
http://nylawthoughts.com
1-800-660-1466
Carol@SchlittLaw.com

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney. Remember, past results do not guarantee similar outcomes in the future.

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