Medical malpractice attorneys are often asked whether a particular situation is enough of a case to justify bringing an action. The answer depends on multiple factors that aren’t necessarily obvious. As with any personal injury case, it doesn’t necessarily matter how severe the injuries are unless it can be proven that negligence was a direct cause of those injuries. There is no question that complications from medical procedures can be devastating, heartbreaking, and life-altering. However, damages alone do not prove negligence.
In order to win a medical malpractice case, a personal injury attorney like Cohen & Cohen who specializes in medical mistakes must show that the physician, hospital, or other medical provider was actually negligent in action or inaction. The attorney also has to prove that the negligence caused the injury, rather than merely being incidental to it. For example, if a doctor makes a mistake in treating an injury, the doctor is only responsible for the new damage caused by the mistake, not for the aftermath of the original injury.
Medical malpractice isn’t necessarily the case even when a procedure goes differently than planned. In 2014, Dr. Yelena Lubman performed a lengthy procedure for her patient Teena Engels, a 42-year-old homemaker in Baltimore County, Maryland. The procedure included hysteroscopy (the insertion of a diagnostic scope through the vaginal canal), dilation and curettage, ablation therapy, and a technique called transobturator sling placement. These were intended to treat stress incontinence suffered by Teena.
Stress incontinence is a condition where the muscle controlling the bladder loses tension during events like sneezing or coughing, resulting in small leaks. For many women, it is a significant annoyance, and a transobturator sling is an attempted remedy. The sling is a small piece of mesh which is inserted under the urethral canal to relieve pressure on the uterine sphincter. Harvard Health explains:
[This] minimally invasive technique…uses needles to place a narrow strip of mesh under the urethra. The procedure takes 15 to 30 minutes and can be performed on an outpatient basis using local anesthesia along with a sedative drug administered intravenously.
Unfortunately, during the procedure, Dr. Lubman accidentally damaged the urethra, resulting in increased urinary incontinence, difficulty urinating, and significant pain and trauma. Teena sued, arguing that Dr. Lubman was insufficiently skilled in performing the procedure and shouldn’t have attempted it. Teena’s medical malpractice attorney brought experts who argued that additional techniques like hydrodissection should have been used to help avoid this injury.
However, defense experts said otherwise. Injury to the urethra is an understood risk of the procedures chosen by Teena, and she was notified of the possibility before surgery. They also argued that additional techniques like hydrodissection don’t always help and are based on the preference of the physician. During the five-day trial, Dr. Lubman even testified on her own behalf to show that she understood these procedures and was competent to perform them. Although no one disputed the extent of Teena’s injuries, the jury ultimately decided after 3 hours of deliberation that Dr. Lubman was not responsible for any malpractice.
