5 Most Common Medical Malpractice Defense Arguments (Myths)

.Insurance companies hire high-powered medical malpractice defense lawyers to defend medical malpractice cases. They manufacture many baseless arguments. Many of these defense arguements not supported by the facts of the case or even by science or medical literature. But many of these arguments sound compelling at first to a jury. But an experienced medical malpractice lawyer can reveal the truth and unravel the fallacy of these baseless defense arguments.

MYTH NO. 1: The injury was 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:  Nurses and doctors made a “judgment call”.  

Just because a nurse or doctors uses their judgment does not mean that it was good, standard-of-care judgment. That’s the whole point of a medical malpractice case. Poor judgment and substandard care caused the predictable bad outcome or death. Bad judgment constitutes medical malpractice and causes poor outcomes. 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:  Someone else or some other event caused the injury. Not the defendants.

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!  

This is false. Nurses and doctors can malpractice on sick people. 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. It’s easy to see the “suboptimal” judgment now, but that doesn’t mean we were negligent back then.

False.  Just look at the textbooks, medical literature, and hospital policies and procedures. Doctors must follow the basic and fundamental medical principles. This leads to good care and good outcomes. Reasonable doctors and nurses follow these standards of care. If they are not followed, then predictable and foreseeable bad 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. They sound good at first, 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.