Medical Negligence: I do not think it means what you think it means

Medical malpractice or medical negligence are overused terms that can cause a great deal of confusion and result in unnecessary grief and angst in an already difficult situation. Let’s talk about what it means to be “negligent.”

In North Carolina, negligence is defined as failing to act as a reasonably prudent person would in the same or similar circumstances. Medical negligence, though, is a different animal here. To present a successful medical negligence claim, you have to show that the provider failed to treat based on the standard of care in this geographical area. What in the hell does all of that mean?

It means that doctors aren’t held to a standard of what’s reasonable. They’re held to a standard of what other doctors in the same geographical area think is reasonable. This isn’t necessarily a bad standard, but it does make for some complicated scenarios. Imagine if a condition is treated one way in the south east and a completely different way in the north west. A patient in the south east is treated the way it’s done in the south east, but suffers ill effects. There may be medical evidence that the patient would not have had those effects if they’d been treated the north eastern way. BUT, as long as the provider treated them in the south east and in the south eastern way, you’ll have a hard time making a successful claim against them.

Right!?!

And that doesn’t even begin to explain the biggest problem with these potential claims. People often assume that if there is a negative effect after a medical procedure then there is negligence. Au contraire mon frere! JUST because something bad happens doesn’t mean there was “negligence.”

First, you have to get past the standard of care issue (discussed above). Was the treatment what other providers would have done in that area? If so, then there’s no negligence.

Second, was the negative impact a known risk of the procedure? If so, there’s no negligence. Yep, there are lists of problems associated with every type of treatment and when you agree to that treatment, you’re agreeing that those might happen and they aren’t the provider’s fault.

We have a jacked up system. I know. But it’s what we have to work with until we get our heads out of our prodigious American a$$@s and fix our health care system. Until then, you’re stuck with it.