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5 Most Common Defense Arguments (Myths) in Medical Malpractice Cases

Dropper system in the operating room during surgical operation in modern clinic. Selective focus.

Medical malpractice cases are wrought with pitfalls.  There are different legal rules that apply to these specialized cases, and they are aggressively defended by skilled defense lawyers and expert witnesses who are willing to circle the wagons for the defendants regardless of the facts of the case.  In these cases, there are some common defense arguments that they try to sell to unsuspecting juries, and they are myths.

MYTH NO. 1:  The defense argues that they did not do anything wrong because the injury was caused by a “known complication”.  Sure, there are some situations where there is a bad outcome that is not anyone’s fault, and the outcome is not what anyone had hoped for.  In other words, a bad outcome does not necessarily mean that the physician or healthcare provider made a mistake.  HOWEVER, there are “known complications” that occur because healthcare providers failed to follow basic, nationally recognized standards.  These mistakes cause foreseeable complications that are known to occur and should be avoided, and this is malpractice.  So don’t fall for the defense trick that it’s just a known complication so, therefore, no one did anything wrong.  This is a myth.

MYTH NO. 2:  The defense likes to argue it was a “judgment call,” and, therefore, they didn’t do anything wrong.  But just because it’s a judgment call doesn’t mean that it was proper or good judgment.  That’s the whole point of a medical malpractice case, that is, there was poor judgment and care that was not consistent with generally accepted medical standards that caused the patient’s injury or death.  Poor judgment is medical malpractice.  So just to call it a “judgment call” as the defense likes to do does not address the central issue of whether it was proper or not.

MYTH NO. 3:  The defense argues that the patient’s injury or death was caused by some event that was not negligent.  As a starting point, a patient must prove (1) duty; (2) breach of duty; (3) causation; and (4) damages to win a medical malpractice case in Georgia. If some other cause, as opposed to the negligent act, caused the patient’s injury or death, this is an intervening or superseding case that absolves the defendant of any responsibility and liability.  But this is also a defense trick, that is, to manufacture a theory that some random, unrelated event actually caused the patient’s injury or death.  Don’t fall for it.

MYTH NO. 4:  The patient was already sick and, therefore, we did not do anything wrong.  This is false.  Mistakes can be made when patients are, indeed, sick and need help.  That’s the reason they are seeking the help of a medical professional in the first place.  Georgia law recognizes the “egg shell” plaintiff rule, which basically means that you take the plaintiff as you find him or her.  If the patient is frail and weak, then the jury can account for that, but that does not absolve a healthcare provider of the duty to treat that patient within the standard of care.

MYTH NO. 5:  Hindsight is 20/20 such that it’s easy to see the facts now so, therefore, we didn’t make a mistake back then.  False.  There are basic and fundamental medical principles that must be followed if patients are going to receive good medical care that is within the standard of care.  If they are not followed, then predictable and foreseeable things will happen.  For example, if someone has an infection that is not treated properly, then the infection will advance, leading to sepsis and, ultimately, death.  If someone has a heart attack and the patient is not treated  promptly, the patient will die from the heart attack.  Same for strokes.  Same for aortic dissections.  The defense’s hindsight argument attempts to distract people from what science and medicine show us to be true, and it is merely an attempt to deflect responsibility.

These are some of the most common defense arguments raised in medical malpractice cases.  Though they are tired and worn out, they are routinely used to avoid responsibility for legitimate and serious medical errors.  Sometimes expert witnesses hired by the defense make all these arguments so that they just sound good, but that does not make them true.  If you need an experienced medical malpractice lawyer in Atlanta, Georgia, call us without delay.  We have the experience to fight for you and undermine these defense tricks.

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