When you come out of surgery and notice that something isn’t right, you may be tempted to call it medical malpractice. However, just because you have a bad outcome from a procedure doesn’t necessarily mean it’s malpractice.

So, how can you tell if you have a medical malpractice case?

Stan Gipe says that when most people think of medical malpractice, they’re focused on the outcome of a procedure. But sometimes a bad outcome from surgery is just a possibility, and it’s not the fault of the doctors. The outcome doesn’t determine if it’s medical malpractice. It’s all about if safety protocols were followed.

Some examples of medical malpractice include operation on the wrong body part or surgical devices being left inside the body. These are very clear examples of safety protocols not being followed and are considered deviations from the standard practice.

You might be wondering, “Does my case really have to be that severe to get compensated?” Typically, the answer is yes. Medical malpractice cases require a great amount of time, effort, and money. Having a doctor review the case, hiring expert witnesses, and litigating the case gets incredibly costly.

Stan and Matt have received hundreds of leads about medical malpractice, but only one or two are actually accepted. The injuries have to be egregious, otherwise, it’s not worth spending all that money on a case. But, if you’re on the fence, it can be helpful to consult with an attorney.

Learn more in this episode of the David vs. Goliath podcast with elite personal injury lawyers Matt Dolman and Stan Gipe. They discuss how to determine if you have a medical malpractice case, common misconceptions about malpractice, and why medical malpractice cases are so difficult.

In this episode:

[00:49] Matt Dolman introduces his guest, Stan Gipe
[01:02] Why a bad outcome from a medical procedure isn’t necessarily malpractice
[03:32] When should you seek advice from an attorney in regard to medical malpractice?
[07:27] Why medical malpractice cases are so difficult
[10:05] The importance of protocols
[14:59] How safety protocols have changed over time

Transcript

Welcome to another episode of the Dolman Law Group Podcast, with my partner in crime, Stan Gipe.

Hello. And today I think we’re going to talk a little bit about medical malpractice issues.

Yeah, so let’s talk about … Let’s just jump right into it. Everyone thinks because there was a bad outcome from a surgery or from a medical procedure that it is malpractice. And what I want to explain to the viewers out there is a normal deviation from the standard of care of what a like-kind specialist should have practiced, that’s medical malpractice, not a bad outcome.

Well, yeah. And that’s, I think, when most people sit down and look at medical malpractice, it’s the outcome that’s the focus. Because you go in, whatever procedure you’re looking for. When you get done, you’ve either received relief you were expecting or you didn’t. And even though this never really comes up, people don’t make claims, just because you got good relief doesn’t mean the surgery was done properly.

Yes, correct. And the adverse.

It could be a surgery was done improperly, but by the grace of God or good luck it ended up not hurting you and the results were okay. So in that case, it would’ve been malpractice. The doctor did something wrong, but your damages are zero because you’re all fine.

The other scenario we get into a lot of times is people come in and they go, “I went in, I had this surgery and oh man, I had this complication. I had this situation arise that I really wasn’t expecting.”

An infection.

An infection.

Didn’t get relief.

Didn’t get relief. And there are also standard known risks of different procedures.

Sure.

It is unavoidable. You can’t make surgery 100% safe and that’s why they make you sign those consents when you go in.

Sure.

And on that consent it’s going to tell you, hey, if there is a 1% chance of something happening during a surgery, that means one out of a hundred people who get this surgery is going to have that effect.

Which is not necessarily. Looking at mathematical probability, that’s not actually rare then.

No, it’s not really rare. And if you happen to be that unlucky 1% that has that happen, doesn’t mean it was malpractice that caused it.

Correct.

So how is it, Matt, that as a consumer, you get done with the surgery, and like most of us, I’m not super mechanically inclined when it comes to fixing my car. I trust my mechanic like I trust my doctor. You go in there and fix it. You tell me what’s wrong with it. You put it back together. And as long as it works at the end of the day, I assume you did it correctly.

What is it? How is it that a consumer is supposed to go, “You know what? I might want an attorney to look at this.” What-

I mean, there’s certain obvious ones, such as a surgical device like a sponge or an object left inside your body.

Yeah, let’s talk about that for a second because that’s one of the more unique cases of medical malpractice and-

And you see it commonly, especially at hospitals. Doctors are busy, they’re overworked, under resourced, and they often leave behind foreign objects. It could be a scalpel, it could be a sponge. And these are foreign objects in the body and you don’t know how your body’s going to react to that. That is obvious malpractice.

Well, it is generally-

If the damages are there.

Yeah, obvious malpractice. And those photos are good. Nothing makes people go, “Ugh.” You do an x-ray and here’s a pair of surgical clips that got left inside. People look at that and go, “Ugh.” And it makes, them say, “Huh.” That’s the only area, or one of the few areas of medical malpractice, where there is a presumption that something went wrong.

Correct. Then you have the ones where, other obvious ones. Operating on the wrong body part, the wrong knee, the wrong arm, the wrong shoulder.

And you know, Matt, just to be frank, that happens. It happens a lot more than more-

Common, yeah, than people think.

It’s way more common than people think. And it’s happened in significant surgeries in the past. You would think you’d be really careful if you’re going to do an amputation.

Yeah, and you figure that they would mark the correct leg.

Doesn’t always happen that way.

No, they’re rushed. And again, there are some of these doctors are overworked, coming off 20-hour shifts. Nurses too, and medical assistants, and mistakes do occur. They occur a lot more often than we think.

It’s because they deal with stuff in such volume. And the smallest deviations or the smallest mistakes can have extreme consequences for those involved in the process.

It’s not just procedures. It’s also, for instance, a delayed diagnosis by a radiologist. A radiologist failing to pick up something on a CT scan, MRI, an x-ray. Obvious signs of cancer, tumors. They ignore it and all of a sudden, when it is uncovered, when it is discovered, it’s too far out. Now the person has stage three or stage four cancer.

We’ve actually got one of those cases we’re reviewing right now for a client, where we’re waiting to get the expert to look at it. Just exactly what you said, Matt. She’s in there for a back problem. She gets her scans, does all these things, had surgery on her back. Starts having other issues too.

And finally she goes to a different specialist who does a scan on her and says, “Oh, ma’am. I’m sorry, but you’ve got cancer.” And he shows where it is on the scan. And then he goes, “And I’ve got some bad news for you. This was also on your scan two years ago, but no one picked it up.”

And it wasn’t caught, now subsequently the problem’s a lot worse.

Yeah, now it’s, what’s it, two years of untreated cancer.

Yeah. And the cancerous cells is rapidly multiplying.

Right. As you know, stage one, stage two, stage three, stage four. Each stage you get to, it’s worse for you. The treatment is worse and the prognosis is worse.

So this lady comes to us and says, “Look, my doctor just said that my cancer’s been on my scan for a few years and they missed it.” As an attorney, I can’t look at a scan and see cancer. I mean, if someone points to it and says, “That’s what it is,” I can see it, but I’m not equipped to evaluate.

You have to find attesting witness.

Exactly.

A doctor of the same like-kind specialty that can attest that the doctor who performed the procedure, that reviewed the x-ray or MRI or CT scan, they deviated from the normal standard of care. That had they applied the normal standard of care, this problem would not have occurred. Or if a problem occurred, it would be due to a bad outcome, not due to their misdiagnosis, misperformance, malfeasance.

Right. But we’ve got it before we can even get out of the gate. I’ve got a, you, I, whatever attorney you’re dealing with, has to pay some doctor to get out there and review what’s happened.

Which is what makes medical malpractice cases so difficult is they’re expert-laden, cost intensive. And what most clients or prospective consumers do not realize is that for every 100 leads we receive, maybe one or two cases are accepted. They’re just very rare. The damages have to be egregious and has to be an open and obvious error that clearly deviate from the standard of care, not just the bad outcome that we’re not satisfied with the procedure.

Well, right. And then the other thing is, as consumers, as people, we’re familiar with the stuff we know day-to-day. Most of the time, if a consumer gets a day-to-day injury, if a person gets a day-to-day injury, a lot of times they can figure out whether that results in a claim. They know about the situation …

Like myself. I fell down skiing. I knew how hazardous it was. I was aware of the risks. I made a mistake, broke my clavicle. Had surgery, I’m now in a sling. I didn’t need to go ask somebody, “Hey, look, is this a claim?” Because I was aware of the circumstance that led up to the injury. I’m familiar with it.

I knew what was a risk and I assumed it, I know how it happened. When you have something like that happen during a surgery it’s a completely different experience. You don’t know what happened.

Sure.

When consumers come out of a surgery or something like that, they want all of the negative consequences looked at. And they feel, “My surgery didn’t go well, it must be a medical malpractice claim for me.” No, you may have just had one of these standard complications from the procedure.

And we’re happy to review that though.

Right. We’re happy to review it, but you just don’t know as a consumer. You’re not equipped as a consumer to say really what the reasonable expectations are-

Correct.

… from a surgery, other than to say you expect to get better.

And we’re just lawyers. And obviously we know enough to be dangerous. We know it’s the open and obvious claim, the easy, obvious case. But the more complicated ones, the ones we’re not certain of, we have obviously … Any case we have medical professionals review anyway.

But we leave it to the medical professionals to make the determination after reviewing the medical records, was this malpractice? Did they deviate from the standard of care? Was the birth injury due to a physician, obstetrician failing to review the fetal monitoring? Did they not pay attention to both the mother and the baby? Did they delay a C-section where the baby was deprived oxygen.

Right.

Or neurological injury was caused by their delay or a misdiagnosis.

And the important thing about what you’re seeing is, Matt, you’ve just laid out a number of different things that we call protocols. “Hey, let’s monitor this. We need to monitor that. We need to look at this.” Typically these protocols get established because something bad has happened.

Correct.

“Hey, we’ve had injuries. We’ve had problems with it,” so we establish a protocol to lessen it. And they try to follow these protocols and sort of, “Hey, if we follow this protocol, the injury is lessened.” Well, there’s so many different protocols that get out, we don’t know what they are. Consumers don’t know what they’re. And until you look at the medical records, until you actually look at the readings, until you get to them, you don’t know if those protocols were followed.

Correct.

And that’s exactly what you’re getting at. It requires another medical professional. Even Matt and I, we may be able to look at these records and say, “God, this doesn’t look good.” It’s going to require another medical professional to look at this and say, “Yeah, even though this was bad and it may look bad, he followed all the protocols. He’s done whatever the doctor should do by all medical standards, so it’s just an unfortunate, bad outcome.”

And it could also be due to a nurse or support staff. It’s not just a doctor, him or herself, it’s the other medical professionals. For instance, if they administer the wrong drug, a medication that you may be alerted to and you have an adverse reaction. And it wasn’t documented properly by the nurse so they failed to review your medical history and a doctor just comes in, that’s the fault of the nurse or medical professional. But ultimately, it’s the medical facility, whether it’s the hospital, the outpatient surgery center, they are the ones that are culpable.

Absolutely. And you bring this up, and that’s one thing I’ve seen quite a bit. It’s exactly what you’re talking about. These facilities are supposed to review everything. Look at these, make sure nothing’s counter-indicated. Make sure you don’t have some kind of adverse indicators out there for treatment that you’re getting. And it’s up to these hospitals to make sure these things are out there. They’re not always following up on all of them.

Correct.

Yeah.

And that’s why these mistakes happen a lot more than you would imagine.

I can’t tell you how many people I know that I’ve had in our surgeries, where I’ve seen, “I told them I was allergic to latex. Yet someone still used latex and now I’ve got this irritation,” or rash or something. Well, I’m going to tell you, hey, unfortunately the rash isn’t a big enough injury to sue someone over. Even though it’s malpractice. If you say, I’m allergic to latex,” they use latex, that’s malpractice.

Yes.

Damages aren’t there. We’re not going to sue them for your rash. But allergic to latex is like allergic to anything else. It’s in the notes, it says it, but in order for the doctors to follow what they got to read it and pay attention.

Sure.

I can tell you, I personally see them miss the allergy to latex a lot because clients will mention that. It’s, “I got this rash. I can’t believe they used latex. I told them I was allergic to latex.” That’s no different than allergic to specific medication, allergic to a specific drug it’s in the chart, it’s there. But in order for you to be protected the doctor’s got to act on it. And if the doctor doesn’t act on that, that’s malpractice.

There was just a $28.5 million verdict handed out in Clark County, Nevada, it’s in Las Vegas. And this is an interesting case. This was tried a few weeks ago by Lauren and Christian Morris, it’s a woman out there. And the facts were, this is a model who was modeling clothes at one of the convention centers out there. And she went into an allergic reaction due to a peanut allergy and they didn’t have the proper EpiPen, the medical professionals who were there. So she went to anaphylactic shock. And by the time that they were able to intervene and give her an IV drip, which is what you’re supposed to do, that’s normal protocol, she was now part paralyzed. She’s a quadriplegic now.

That’s what resulted in a $28.5 million verdict, is their deviation from the normal standard of care that they should have had epinephrine available as medical professionals, that they should have anticipated the possibility that one could have an allergic reaction. And being onsite medical staff, and they were hired for this event, they were ill-prepared and this resulted in egregious injuries.

I agree 100% with you on that, and this is … And I know some people say, “Well, gee. We put all these standards, we make people do all these things.” Matt, let me ask, you do cardio. You go to the gym a lot, right?

Mm-hmm (affirmative).

Okay. We go to the same gym a lot.

Yeah.

Okay. This doesn’t get publicized a whole, whole lot but-

Are you talking about the defibrillator?

Well, yeah, I was going to say, do you know how many people die at the gym?

Yeah, they don’t have a defibrillator.

Well, now gyms, all of them are required. The standard of care is having a working defibrillator in the gym.

Not just having a working defibrillator, but having staff members that are trained to use that defibrillator.

Exactly. And that’s happened because over time we’ve realized, people are dying in gyms. When we ask someone who hasn’t worked out in a while to get out there and start pumping the heart, one out of 1,000, he’s going to fall over.

Yeah.

Even healthy people, it just happens.

I workout every day at LA Fitness while you’re off for a few weeks with your injury, and I’m not here to make a comment, I don’t know how their staff is trained, but there are days we walk in there and there’s only a couple of staff members there. It’s a girl up front and maybe one or two other staff members. Are we sure that they’re trained how to use the defibrillator?

Yeah, what was it? Three months ago, we had someone die on one of the treadmills in our gym.

Yeah, at LA Fitness.

Yeah, a local guy die eye. They didn’t end up using the defibrillators on him, because I think there was a head injury and they were worried about the impact of the defibrillators on a head injury. But that’s how these things happen. You go, “Well, geez, as a gym, I own a gym. Why should I have to have a defibrillator?” You have to have a defibrillator because over the last 50 years we’ve seen a bunch of people die in gyms.

Yeah.

So if you’re going to run something-

level of risk.

… that’s going to have a risk of people … And you’re going to make money doing this, this isn’t a volunteer. Your business is, “Okay, I’m going to have this gym. I’m going to make money. I’m going to charge people to be here.” Make it safe. You got to take the precautions. You got to take the protocols. And it’s a little bit like medical malpractice because the same stuff develops over time, the safe protocol. So what may have been safe in 1980 may not be safe now.

Correct.

What may have been a protocol for the surgery in 1990 may not be the protocol now.

Correct.

What your dad told you he experienced during his surgery may be much different than what you experience now.

Sure.

So if you-

Was the protocol followed and was a training up to par?

Right. There’s enough different stuff that gets in there. And with medical malpractice especially, there’s a lot of money that goes into the suits. If someone’s got a really minor injury, even if it’s egregious medical malpractice, it’s never going to get pursued because the finances don’t allow it.

Yeah, the injuries have to be egregious again. These cases, they cost you six figures.

Well, usually it’s going to cost us about $20,000 to figure out if there is a case. And so if you claim isn’t worth $100,000, it’s almost not worth spending that money on the front end.

And then to continue the case.

Oh.

To hire the expert witnesses, to litigate the case, it becomes very, very, very expensive, very cost-laden.

The one thing you got to know is, look, if you’ve any kind of questions on medical malpractice, have an experienced attorney look over the situation first. Look at it, let you know. Get someone who’s been out there and done it before evaluate it, because all you know for sure when you get done with surgery is that you’ve either got a pain or your symptom or whatever the case may be, you were generally asleep when it happened.

Correct.

You don’t know what the doctor did when they went in there. But if you’ve got reason to suspect that the doctor might have done something wrong, you’ve had a bad outcome, absolutely go have someone check it out.

Happy to do that.

Yeah, we do it all the time. We do it day in, day out. And understand, medical malpractice is not just doing something wrong, it’s also failing to do something that was right.

Yes. A true deviation from the standard of care.

Yeah. So if you’ve been in a situation, you got any kind of medical malpractice issues at all, we’re always happy to talk to you here at Sibley Dolman and Gipe.

Yep.,Just drop us a line. You could always email me at [email protected], D-O-L-M-A-N, law, dolmanlaw.com. Or call us anytime, 24 seven. 8-3-3-5-5-CRASH. And that name might be indicative of we handle a lot of personal injury and auto accidents, but we do our fair share medical malpractice cases with a track-record of success.

Yeah. Generally injury attorneys, you’re going to find most of us, you’re going to get auto accidents, your standard tort claims, medical malpractice. And then there’s sort of this third called basket of things that are just weird, that come in occasionally and fall way outside the norms that you’re thinking, of sometimes odd insurance claims don’t pay and things like that. Any of that stuff, we’re happy to help you out with.

Yes, sir. Stan Gipe, I’m Matt Dolman. Stan’s a Board Certified Civil Trial Lawyer. We’re both located here in Clearwater. We have offices on both coasts of Florida. Feel free to call us anytime. Again, 8-3-3-5-5-CRASH. And that concludes another episode of the Sibley Dolman Gipe Podcast. Have a blessed day.

💡 Meet Your Host 💡

Name Matthew A. Dolman, Esq.

Title: Partner at Dolman Law Group Accident Injury Lawyers, PA

Specialty: Matt is a nationally recognized insurance and personal injury attorney and focuses much of his practice on the litigation of catastrophic injury and wrongful death cases throughout Florida.

Connect: LinkedIn | Twitter | Instagram

💡 Featured Guest 💡

Name Stanley Gipe, Esq.

Title: Partner and Head of Litigation at Dolman Law Group Accident Injury Lawyers, PA

Specialty: Stan is a Florida Board Certified Civil Trial Lawyer. This distinction connotes expertise in the discipline of trial practice. He has served as lead counsel on over 1,000 Florida personal injury lawsuits.

🔑 Relevant Resources 🔑

The insights and views presented in “David vs. Goliath” are for general information purposes only and should not be taken as legal advice for any individual case or situation. The information presented is not a substitute for consulting with an attorney. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. Any case result information provided on any portion of this podcast should not be understood as a promise of any particular result in a future case. Dolman Law Group Accident Injury Lawyers: Big firm results, small firm personal attention.