You're in the hospital.
You just had surgery.
You've been told there was a problem.
During surgery.
It's a complication.
Your surgeon needed to do more than what he originally intended.
Now, you'll be in ICU for a few days.
Then, you'll be moved to a regular floor.
You'll likely be in the hospital for another two weeks.
Recuperating.
Hoping you don't get a hospital-acquired infection.
Hoping you don't get worse.
Hoping you get well enough to go home.
If you're lucky enough to go home, then you can expect visiting nurse service every other day.
To change your bandages.
To clean you.
To wash you.
To clean your drain.
To make sure you're not infected.
Then, if you heal without further incident, you'll need another two months to get back on your feet.
You won't be able to work.
You'll be in pain.
You'll be unable to do your daily activities.
Your spouse will need to pick up the slack.
Your kids will need to find rides elsewhere.
Family trips are out for the near future.
Family meals are out too.
You want to know why you're in this condition.
Why did you suffer this complication?
Was it something that should never have happened?
Was it a risk of the procedure?
Was this something that could happen even in the best of hands?
You want answers.
Your surgeon told you before your surgery that this was a 'routine' procedure.
He told you that you'd be in the hospital for just a few hours.
Now it'll be weeks.
Now, instead of being able to return to work in a day or two, you're out for months.
This is not right.
This is not fair.
You want answers.
You want to know if your doctor was careless.
You want to know if your doctor violated the basic standards of medical care.
You want to know if he screwed up.
If he did, you want him to compensate you for your injuries.
If he did, you want him to be responsible for all the harms, losses and damages you suffered.
A day later, while still in the intensive care unit, you confront your surgeon.
"WHY DID THIS HAPPEN?" you demand to know.
"WHY DID YOU DO THIS PARTICULAR PROCEDURE AND NOT THE OTHER ONE?"
"WHAT EXACTLY HAPPENED HERE?" you ask accusingly.
Your doctor is taken aback.
He doesn't like being confronted like this.
It's almost like an ambush.
At first, he's apologetic that you have to endure these post-operative complications.
Then, the more you accuse, the angrier he gets.
He finally turns to you and says "I USED MY BEST MEDICAL JUDGMENT to treat you. I'm trying to help you. You had multiple choices to treat you. Based on my years of clinical experience and judgement, I decided this was the best option for you. After we spoke at length, you agreed to this procedure. I explained the risks of the surgery. You understood those risks. I told you this was a risk of the procedure. You again said you understood.
I DID NOTHING WRONG HERE. I'm sorry this happened to you. We're working now to get you better. I can't change what's already happened. We can only go forward from here."
His comments are heartfelt.
He truly feels bad.
He hasn't had this type of complication in many years.
But what YOU heard from his comments are different than what he SAID.
What you perceived was different from what he said.
What you interpreted from his comments are again different from what he meant.
You came away from that conversation feeling as if he apologized for causing you this injury.
You felt he was admitting he screwed up.
You felt he was apologizing for screwing up.
Actually, that's NOT what he said.
That's NOT what he meant.
Instead, that's what you perceived he said.
Big difference here.
What you missed entirely is that he explained how he used his BEST MEDICAL JUDGMENT.
That's important.
As long as his best medical judgment was within the accepted medical standard of care, then it's unlikely you'd be able to show he violated the standard of care.
Let me put it another way...
Just because you suffer an injury or a complication from a procedure does NOT mean there was wrongdoing.
It might, but it's not automatic.
Where a doctor has many choices about how to treat you and he chooses one method over another, as long as that method was appropriate, then it will be very challenging to show he was careless.
If you can't show that he was careless, then he will not be responsible for your injuries, no matter how badly injured you were.
On the other hand, if the choice to treat you fell below the standard of care, then we'd likely be able to show that your doctor violated the standard of care.
At trial, your doctor will bring in medical experts to confirm that he used his best medical judgment to treat you.
If the jury buys this argument, you lose.
That means you get nothing.
What the doctor says and what you perceive him to be saying are often different things.
In a medical malpractice case here in New York, this defense is often used to show that your doctor treated you appropriately and unfortunately, despite his best efforts, you still experienced this complication.
