Here's an out-of-state case that nonetheless illustrates a key hurdle clients with medical malpractice cases in California face. Former CBS "Early Show" personality Mark McEwen's medical malpractice case was recently dismissed by a Federal judge, on the grounds that he could not prove that the anti-stroke drug that doctors failed to give him would have prevented the disabling stroke he suffered. Shortly after McEwen went to an Emergency room with classic stroke symptoms, he was sent home with a stomach flu diagnosis. McEwen's attorneys, and presumably his medical experts, believed that if he had been given proper preventative treatment-aspirin and blood thinners--he would not have suffered the subsequent stroke that cost him his career.
This is a classic example of a malpractice case where it is easy to prove the doctors were negligent, but the case is lost due to an inability to meet the legal standard to prove causation. This causation requirement applies to all California cases. In any case involving failure to provide timely, correct treatment, you must also prove that, if the treatment had been given when it should have, you would "probably" have had a much different outcome. Here in California, "probably" means more than a 50% chance. So, if the treatment--be it radiation, pills, an operation, etc.--would have given you a 40% chance to avoid harm, there is no case.
This causation requirement can be very hard for a malpractice victim to accept. Explaining to clients that they don't have a case, even though there is clear evidence that a doctor committed malpractice is a tough part of my job. Some defense lawyers call this the "so what" defense, as in, "so what, you didn't get the care you should have, but you can't prove it would have helped you."
Of course, it's always hard for the medical experts we must have in these cases to perform this type of "what if" analysis, and tell us what would have happened to a patient if he/she had been given proper care at any given point in time. And doctors who are sued can almost always find experts to support a "so what" defense in cases of failure to treat or misdiagnosis.
In McEwen's case, he didn't even get to present the issue to a jury. His case was dismissed on a pre-trial motion. One bright spot in all this is that juries in California tend to give malpractice victims the benefit of the doubt on causation questions at trial, once a strong case of malpractice has been proved.
The attorneys at Callaway & Wolf have the experience to help you evaluate your California medical malpractice case.
