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Sidebar - No Damages, No Case · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is Statute 10 Steps.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:25
  SPEAKER_00: Let me start with a case that sounds strong until you look at it closely.
• 0:30
  SPEAKER_00: A patient in a hospital is supposed to get a blood pressure medication at nine in the morning.
• 0:36
  SPEAKER_00: Its charge is given at 11:30.
• 0:38
  SPEAKER_00: Two and a half hours late.
• 0:40
  SPEAKER_00: There's no documented reason.
• 0:43
  SPEAKER_00: The family finds out and they're upset.
• 0:45
  SPEAKER_00: And they call an attorney.
• 0:47
  SPEAKER_00: On its face, that's a medication error.
• 0:49
  SPEAKER_00: So there's a case, right?
• 0:51
  SPEAKER_00: Now, here's what the rest of the chart shows.
• 0:54
  SPEAKER_00: The patient's blood pressure stayed in the normal range the entire time.
• 0:58
  SPEAKER_00: No symptoms, no change in treatment.
• 1:01
  SPEAKER_00: She was discharged two days later, exactly as planned, and she's fine today.
• 1:06
  SPEAKER_00: That's a mistake.
• 1:07
  SPEAKER_00: It may be even a breach of the standard of care.
• 1:10
  SPEAKER_00: But in most courtrooms, it's not a case.
• 1:14
  SPEAKER_00: Because nothing happens to her as a result.
• 1:18
  SPEAKER_00: I can't tell you how many phone calls I get with issues just like this.
• 1:23
  SPEAKER_00: And that's what today is about.
• 1:25
  SPEAKER_00: There's a phrase attorneys use that I want every clinician to hear early in this work.
• 1:30
  SPEAKER_00: No damages, no case.
• 1:32
  SPEAKER_00: Negligence isn't just about whether something went wrong.
• 1:36
  SPEAKER_00: It's about whether what went wrong actually caused harm and whether that harm can be measured.
• 1:43
  SPEAKER_00: It's harder to even discern some of these when there's a death involved.
• 1:47
  SPEAKER_00: Was there negligence?
• 1:48
  SPEAKER_00: Did they cause the death?
• 1:50
  SPEAKER_00: In medical negligence, there are four elements, and each one has to be proven.
• 1:56
  SPEAKER_00: Duty, breach, causation, and damages.
• 2:00
  SPEAKER_00: If any one of them is missing, there is no recovery, no matter how strong the other three are.
• 2:07
  SPEAKER_00: Duty is usually the easy part.
• 2:09
  SPEAKER_00: Did a provider have a professional relationship with a patient that created an obligation of care?
• 2:14
  SPEAKER_00: A nurse assigned to that patient?
• 2:16
  SPEAKER_00: A physician who took the consult?
• 2:18
  SPEAKER_00: A facility that admitted the resident?
• 2:20
  SPEAKER_00: Most of the time that isn't really disputed.
• 2:23
  SPEAKER_00: Breach is the part clinicians think about most.
• 2:26
  SPEAKER_00: And it's where most of our earlier episodes have lived.
• 2:30
  SPEAKER_00: Did the care fall below what a reasonably careful provider would have done in the same situation at the time with the information that was available?
• 2:38
  SPEAKER_00: Then comes the two elements that end more cases than people realize.
• 2:44
  SPEAKER_00: Causation and damages.
• 2:47
  SPEAKER_00: Let's take damages first because it's the simpler idea.
• 2:50
  SPEAKER_00: Damages are the harm.
• 2:52
  SPEAKER_00: In a medical case, that might be an additional medical treatment, a longer hospital stay, lost wages, having to have a surgery repeated, permanent injury, pain and suffering, or in the worst cases, death.
• 3:05
  SPEAKER_00: The law is trying to put a value on what the patient or family member lost.
• 3:11
  SPEAKER_00: If there is no loss, there's nothing to compensate.
• 3:15
  SPEAKER_00: The whole premises of this is to put you back in the position that you would have been in but for this injury or for this event having happened to you.
• 3:26
  SPEAKER_00: The best way the law can compensate you for a medical issue like this is financial.
• 3:32
  SPEAKER_00: They can't give you back your limb.
• 3:34
  SPEAKER_00: They can't make the car accident not have happened.
• 3:37
  SPEAKER_00: So they compensate with money.
• 3:40
  SPEAKER_00: Our late blood pressure dose is a very good example.
• 3:43
  SPEAKER_00: It's a real error and a breach, but there's no harm.
• 3:47
  SPEAKER_00: Now, attorneys also think about damages in a very practical way.
• 3:51
  SPEAKER_00: Medical negligence cases are expensive to bring.
• 3:55
  SPEAKER_00: They need experts, records, depositions, sometimes years of work.
• 3:59
  SPEAKER_00: So even when there is some harm, if it's small, the case may not be worth pursuing.
• 4:06
  SPEAKER_00: That is not coldness, it's the math of litigation.
• 4:10
  SPEAKER_00: It's running a law firm with resources and limited resources.
• 4:15
  SPEAKER_00: And as an expert, it helps to understand that the attorney's first questions about harm aren't whether they believe the family.
• 4:22
  SPEAKER_00: They're about whether the case can work.
• 4:25
  SPEAKER_00: Now, causation.
• 4:28
  SPEAKER_00: This is the element I tell any new expert to study the hardest because it's where good reviewers separate themselves from average ones.
• 4:37
  SPEAKER_00: Causation asks whether the breach actually caused the harm.
• 4:43
  SPEAKER_00: Not whether the harm happened near the breach, not whether it happened after the breach, although sometimes there is the subsequent things that happen, but that's a whole nother discussion.
• 4:54
  SPEAKER_00: Whether the breach caused it.
• 4:56
  SPEAKER_00: And what I'm going on about here, just briefly not to get too much into the weeds, is that if someone causes a harm, essentially, at just say point A, and then they're taken to the hospital and there's medical negligence in the hospital, and but for the initial harm caused, a person wouldn't have been in a hospital, then that's how you would tie that together.
• 5:13
  SPEAKER_00: But that's more of a proximate cause issue, and we can get into that later.
• 5:16
  SPEAKER_00: So anyway, there are a couple ways courts frame this.
• 5:20
  SPEAKER_00: And the framing depends on the state.
• 5:23
  SPEAKER_00: The most common one is the but for causation.
• 5:26
  SPEAKER_00: But for the breach, would the harm still have happened?
• 5:30
  SPEAKER_00: If the harm would have happened anyway, even with perfect care, then the breach didn't cause it.
• 5:35
  SPEAKER_00: Some states and some situations use a substantial factor test instead.
• 5:40
  SPEAKER_00: The question there is whether the breach was a substantial factor in bringing about the harm.
• 5:46
  SPEAKER_00: That can matter when more than one thing contributed, for example, when a delayed diagnosis and the patient's own underlying disease both played a role.
• 5:55
  SPEAKER_00: So here's a scenario to make it real.
• 5:57
  SPEAKER_00: A 78-year-old resident in a nursing home develops a pressure injury on her sacrum.
• 6:03
  SPEAKER_00: The records show that turning was documented inconsistently for about a week.
• 6:07
  SPEAKER_00: So there's a possible breach.
• 6:09
  SPEAKER_00: But the records also show she had advanced heart failure, poor nutrition, despite supplements, and was in her last weeks of life.
• 6:17
  SPEAKER_00: Now the question becomes much harder.
• 6:20
  SPEAKER_00: Would that wound have developed anyway, given how sick she was?
• 6:24
  SPEAKER_00: Would more frequent turning have prevented it or only slowed it?
• 6:28
  SPEAKER_00: What does the literature actually say about unavoidable pressure injuries at the end of life?
• 6:34
  SPEAKER_00: Those are causation questions and they're medical questions.
• 6:39
  SPEAKER_00: That's why the attorney needs you.
• 6:41
  SPEAKER_00: A lawyer can find a missing turning documentation.
• 6:44
  SPEAKER_00: It takes a clinician to explain whether that gap made a difference to this patient's body.
• 6:51
  SPEAKER_00: I want to point out a trap here because I see it in draft reports all the time.
• 6:57
  SPEAKER_00: It's the assumption that because the harm followed the error, the error caused the harm.
• 7:02
  SPEAKER_00: It happened after, so it happened because.
• 7:05
  SPEAKER_00: It's one of the most common errors in reasoning, and opposing counsel will find it instantly.
• 7:09
  SPEAKER_00: A strong causation opinion walks through the mechanism.
• 7:14
  SPEAKER_00: What was the breach?
• 7:15
  SPEAKER_00: What would have happened with proper care?
• 7:17
  SPEAKER_00: What actually happened?
• 7:18
  SPEAKER_00: And what is the medical basis for connecting the two?
• 7:22
  SPEAKER_00: If you can't explain that chain in plain language, the opinion isn't ready.
• 7:27
  SPEAKER_00: There's one more idea I want to introduce because it comes up in delayed diagnosis cases and it catches clinicians off guard.
• 7:34
  SPEAKER_00: It's called loss of chance.
• 7:37
  SPEAKER_00: Imagine a patient with a cancer that was missed on an imaging study.
• 7:42
  SPEAKER_00: At the time of the missed study, her chance of survival might have been around 40%.
• 7:47
  SPEAKER_00: By the time it was caught, it had dropped to 10%.
• 7:51
  SPEAKER_00: Under a strict but for test, some courts would say there's no case because she probably wouldn't have survived even with a timely diagnosis.
• 8:00
  SPEAKER_00: 40% is less than 50.
• 8:03
  SPEAKER_00: Some states see that as unfair.
• 8:05
  SPEAKER_00: They allow a claim for the loss of chance itself, meaning the reduction from 40% to 10% is treated as the harm.
• 8:14
  SPEAKER_00: Other states reject the idea completely.
• 8:16
  SPEAKER_00: And the states that allow it handle the damages in different ways.
• 8:20
  SPEAKER_00: So the same set of facts can be a viable case in one state and no case at all in the state next door.
• 8:27
  SPEAKER_00: For an expert, the lesson is not to decide which rule applies.
• 8:31
  SPEAKER_00: That's the attorney's job.
• 8:33
  SPEAKER_00: The lesson is to be precise.
• 8:36
  SPEAKER_00: If you're going to talk about chances and percentages, you need a real basis for the numbers.
• 8:41
  SPEAKER_00: You need to be clear about the timing.
• 8:43
  SPEAKER_00: You need to know which standard the attorney is working under before you write the report.
• 8:47
  SPEAKER_00: And ask.
• 8:49
  SPEAKER_00: It changes how the opinion should be framed.
• 8:52
  SPEAKER_00: Let's bring this back to what looks like in real practice.
• 8:55
  SPEAKER_00: When an attorney first sends you a case, it's tempting to go straight to the breach because that's where your clinical training lives.
• 9:01
  SPEAKER_00: You spot the missed assessment, a late medication, the order that wasn't followed.
• 9:06
  SPEAKER_00: But a disciplined reviewer asks all four questions early.
• 9:10
  SPEAKER_00: Was there a duty?
• 9:11
  SPEAKER_00: Was there a breach?
• 9:12
  SPEAKER_00: Did the breach cause the harm?
• 9:14
  SPEAKER_00: And what specifically was the harm?
• 9:17
  SPEAKER_00: Sometimes you'll find the answer is the answer is breach.
• 9:22
  SPEAKER_00: Oh, do over.
• 9:23
  SPEAKER_00: Sometimes you'll find the answer is breach, yes, but causation, no.
• 9:27
  SPEAKER_00: That's a valuable opinion.
• 9:29
  SPEAKER_00: Telling an attorney early that the error probably didn't change the outcome saves them time, saves their client money, and saves a family from a long process that was never going to go anywhere.
• 9:41
  SPEAKER_00: The experts attorneys trust most are not the ones who say yes to everything.
• 9:46
  SPEAKER_00: They're the ones who tell them the truth about the weak element before anyone has spent a year on it.
• 9:51
  SPEAKER_00: And it works in the other direction too.
• 9:54
  SPEAKER_00: Sometimes the breach looks minor, but when you work through the causation, you see it set off a chain of events that led to serious harm.
• 10:01
  SPEAKER_00: Sort of like what I talked about earlier.
• 10:03
  SPEAKER_00: A late antibiotic dose that seemed like a small scheduling issue in a patient with early sepsis can matter a great deal.
• 10:10
  SPEAKER_00: The size of the error and the size of the harm are not always the same.
• 10:14
  SPEAKER_00: So here's the takeaway: a mistake alone is not a case.
• 10:19
  SPEAKER_00: For every review, work through all four elements and give causation and damages the same attention you give to the breach.
• 10:27
  SPEAKER_00: In fact, causation, you might almost want to give more because it's harder to think about.
• 10:34
  SPEAKER_00: It's a little more abstract thinking.
• 10:36
  SPEAKER_00: Ask yourself, what would have happened with proper care and whether you can explain the connection in plain language.
• 10:43
  SPEAKER_00: And if you can, your opinion will hold.
• 10:46
  SPEAKER_00: And if you can't, you've just learned something important.
• 10:49
  SPEAKER_00: And the attorney needs to hear it.
• 10:52
  SPEAKER_00: Now, I mentioned briefly proximate cause, and that is a little more complex of a topic, which I will discuss on a future episode.
• 11:01
  SPEAKER_00: And remember, this is educational information, not legal advice.
• 11:05
  SPEAKER_00: Causation standards and damages rules vary by state, and the attorney on the case decides which ones apply.
• 11:13
  SPEAKER_00: This episode of Statutes and Stethoscopes.
• 11:16
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 11:19
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at National Expert Academy.com.
• 11:27
  SPEAKER_00: I'm Tracy Libratori.
• 11:29
  SPEAKER_00: I'll see you on the next episode.