medical malpractice attorney

It is a very unfortunate situation when a loved one has been seriously injured and the family is informed by the doctors that they have done all they can, but the person is “brain dead.” 

The family is left with the impossible decision about whether to take them off life support.  But, what happens when the doctors are wrong?  A misdiagnosis of brain death happens more often than you may think. 

When it does, there may be a basis for a personal injury claim, so talk to your medical malpractice attorney to see what steps can be taken.

Medical malpractice cases are far too common

Unfortunately, medical lawyers are keeping busy with an increase in malpractice cases.  One of the reasons medical malpractice have become so common is the fact that health care providers have become more and more reliant on medical technology and electronics.

Hospitals are set on becoming paperless by computerizing their systems, including patient records, utilizing automatic orders and electronic patient monitoring devices.  Inadequate training and malfunctioning devices can result in malpractice and injury.

Basic elements of a medical malpractice claim

There are four elements required to be proven in every medical malpractice claim, regardless of the type of injury that was sustained. First, a doctor-patient relationship must be demonstrated. 

Next, it must be shown that the doctor in question was negligent and that negligence caused your injuries.  Finally, you must show that the injuries you suffered resulted in the damages for which you seek compensation.

What does the diagnosis “brain dead” actually mean?

The medical term “brain death” is commonly defined as “death based on the absence of all neurologic function.”  Brain death does not mean that the person no longer has any biological function, however.  In most cases, a patient is not classified as brain dead until examined by a neurologist.  However, not every hospital or medical facility requires a diagnosis by a neurologist in order to rule someone brain dead.

In reality, only about 33% of all hospitals require a neurologist to make the diagnosis. Regrettably, hospital policies regarding the diagnosis of brain death are highly inconsistent, which opens the door for widespread errors.

The doctor’s negligence caused the injury

Another important element of a medical malpractice case is establishing that whatever the doctor did or didn’t do, actually caused the reported injuries or damage.  The reason this can be an important issue is that most patients are sick or injured when they first come to see the doctor, so it must be proven that the doctor’s actions were the real cause of your injuries. In other words, if a patient dies, it must be shown that illness or injury that the patient was already suffering was not the real reason for the death. 

An expert witness is typically required to establish this element as well.

Examples of incorrect brain death diagnoses

A young girl at the Children’s Hospital in Des Moines, Iowa was pronounced brain dead.  Her parents were told they needed to make arrangements to take her off life support. They were preparing to donate her organs, but before they could begin harvesting, she awoke from her coma.

Similarly, a woman in New York was pronounced “brain dead” by doctors, and later awoke unexpectedly as they were preparing to remove her organs for donation.  A man in Texas was pronounced brain dead by doctors at the Tomball Regional Medical Center. When they attempted to disconnect him from life support, the man’s father threatened to shoot himself if they did.

The young man woke up later that evening and subsequently made a strong recovery.

Negligent conduct by the doctor

One common misconception many patients have is that simple disagreement with your treatment or its results is grounds for a medical malpractice claim. That is not the case. No matter how unhappy you may be with your treatment or your doctor’s bedside manner, if he or she was not negligent in providing your medical treatment, you do not have a claim. 

Specifically, you must have evidence that the doctor failed to use the “reasonable skill and care” a competent doctor under the same circumstances would have used. 

This is the most important element of a medical malpractice case and often the most difficult to prove.  Nearly every state requires that the patient offer an expert to establish both what the appropriate medical standard of care is and how the doctor deviated from that standard.

If you have questions regarding medical malpractice claims, or any other personal injury concerns in Arkansas or Missouri, please contact the Cottrell Law Office for a consultation, either online or by calling us as (888) 433-4861.

Author Photo

Wesley Cottrell

Wes Cottrell earned his B.A. from Pittsburg State University in 1981 and his J.D. from the Washburn University School of Law in Topeka, Kansas in 1985. He was admitted to practice law in Kansas in 1986, in Missouri in 1987, in Arkansas in 1989, and Oklahoma in 1993. He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.

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