Syracuse Personal Injury Law Blog

In a prior post, we highlighted the breaches in procedure and improper actions taken by physicians that led to Joan Rivers’ death. Essentially, there were critical errors that if they were abated, could have saved Rivers’ life.

While the Rivers’ case appears to be a straightforward case of negligence, many other medical malpractice cases are not so clear cut. This led us to think about potential things that patients could do to help them avoid medical malpractice cases. This post will identify a few.

Speak up – Doctors are trained to diagnose medical conditions and make recommendations on how to treat them. However, you know your body much more than a physician can. So if you feel that something is wrong but doctors are telling you that everything is alright, speak up for yourself and not simply rely on one opinion. After all, it is your body and only you have to deal with the consequences if something goes wrong.

As a patient, you may not be as concerned with certifications as a physician might be; but perhaps you should. Indeed, doctors may believe that certifications are an important measure for keeping abreast of the latest recommendations and best practices for a particular field. When doctors are into continuing education, the patient stands to benefit as well.

Take Arizona Cardinals quarterback Carson Palmer. He went down with an injury during last Sunday’s game. It was discovered that he tore his ACL, unfortunately on a play where crumpled to the field untouched. Palmer is likely to trust his surgery and subsequent rehab to someone who is certified by the National Academy of Sports Medicine (NASM) and/or the American Orthopaedic Society for Sports Medicine (AOSSM). 

Certification by these groups inherently means that they are up to date on the latest techniques for surgery and post-operative care. Doctors who continue to hone their craft by obtaining these certifications are less likely to fail to use reasonable care during a procedure or during the rehab period. For instance, these physicians can advise on the best times after a catastrophic injury has occurred to have surgery. So while you may not have a professional football career to earn a living, medical negligence can occur regardless of your income.

Indeed, physicians have difficult jobs where there may be times where they must make split second decisions that can have critical implications on patients’ lives. This is why they go through extensive training in order to properly diagnose illnesses and injuries and to make care recommendations accordingly. Despite the difficult nature of their profession, doctors must use reasonable care when performing their duties.

However, in situations where doctors are acting as Good Samaritans in emergency situations, should they be held to the same standards? More importantly, should a patient injured by a doctor in this position be able to initiate a malpractice suit?

This is an important question given that doctors may have an ethical duty to assist members of the public in the event of an emergency. Nevertheless, Good Samaritans are protected in a number of situations under New York law, including where:

There is a notion in the medical community that over-testing and over-treatment of patients (i.e. defensive medicine) is practiced in order to limit the risk of future medical malpractice cases. While there may be some truth to this notion, a recent publication in The BMJ suggests that the overall culture in the medical community, as well as the attitudes among physicians may be more of a reason for defensive medicine than the specter of a medical malpractice claim.

Essentially, the culture of intolerance towards uncertainty and error among physicians themselves is the driver of over-testing and over-treatment. Doctors appear to perpetuate a culture where uncertainty in treatments is unacceptable; almost as if they have to be perfect with every diagnosis and recommendation for treatment. Indeed, there is an obvious incentive in being accurate, but when it deteriorates into medicine that does not focus on the best treatment for the patient, the culture behind it should be changed.

Because of this, two highly regarded professors argue that professional and public attitudes towards medical errors must be changed. This goes beyond medical malpractice reform, as the financial incentives presented to doctors along with the persistent marketing efforts to physicians create an increasing demand for testing and treatment.

Nearly a year after DePuy Orthopaedics settled what was one of the largest hip replacement recall lawsuits, it appears that another similar settlement is in the works. According to a recent New York Times report, Stryker, a Michigan based artificial hip implant provider, will settle the lawsuit against it brought by thousands of hip replacement patients that have experienced complications after using Stryker products.

Many patients who used the all-metal implants, which had become popular because of how durable they reportedly were, found that metal debris would come from the device’s ball and cup as the parts wore out, which would irritate the tissue surrounding the replacement hip. 

Manufacturers have a legal duty to ensure that the products they put on the market are safe for a consumer’s intended use. If the product turns out to be defective (either through design or the means in which it was built), a manufacturer could be held liable for injuries to consumers. Before they were recalled, all-metal devices accounted for nearly one in three of the estimated 250,000 hip replacement procedures performed in the United States.