My name is Zaheer A Shah, MD J
DI'm the principal and founding partner of Shahand Associates It's a medical malpracticeand personal injury law firm basedcurrently in Tempe, ArizonaWell, medical negligence, before we talkabout that let's talk a little bit aboutjust what negligence itself is
So negligence is essentially a failure toact reasonably That's the standard thatis used by the courts to determine whatis a proper or improper actNow, let me give you an example of thatSo with respect to the automobileindustry
Over time, negligence or afailure to act responsibly or reasonably,evolves For example, brake lights
Initially there were no brake lights ona car, but then over time we determinedthat in order for the car to bereasonably safe it should have brakelights, and then eventually we evolved tothe point where you also have safetyharnesses, safety belts, and now evenairbags And I'm sure the future willhold even further advances thatdetermine or define what reasonable is,and the reasonable is the exact oppositeof negligence Because the medical spaceis a much more sophisticated servicearea where you have highly trainedproviders, medical negligence has to bereally carefully defined And the term ofart that's used in that space is"standard of care
" So we expect allproviders not to be outstandingproviders, but to at least meet a basicthreshold standard of care that theydeliver to the patients that they arecaring for How is that standard of carearrived that will distinguish negligencefrom something that is not negligent?Well there's a lot of factors that gointo that It can be determined ordependent on where the provider ispracticing So if you're in a remoterural area, the standard of care may becompletely different than if you'repracticing in Boston
If you are aspecialist versus a general practitioner,the standard of care may vary Ultimately,negligence or meeting the standard ofcare or lack thereof is one of thecritical elements that are necessary toprovein order to have an effective orsuccessful medical malpractice lawsuitSo it's one of three really criticalareas of the litigation of one of myclients injuries at the hands of amedical provider that I have to fulfillSo negligence as we understand it isabout standard of care, and the realanalysis is, is did the provider meetthat standard of care? Because if theydidn't,that's medical negligence
Well a lot ofpeople when they think about medicalnegligence, they assume that as long asthey find negligence, or they've been thevictim of negligence, that they've got alawsuit And oftentimes I have to be thebearer of bad news, which is to statethat, "no, there's a lot more that goesinto whether or not you're going to havea viable medical malpractice lawsuit"So what I oftentimes suggest is, is beginwith, what was the harm or injury thathad been sustained? If the harm or injuryis substantial and likely permanent, thenthat's a case that needs to beinvestigated more fully Once you do that,then you have to look at, was there astandard of care violation? Was theprovider that rendered the care thatresulted in this substantial andpermanent injury, was that care abovethat standard of care or was it below?Now keep in mind again, we're notexpecting our providers to beextraordinary caregivers or to practicein the latest state-of-the-art, that'snot what the law requires or expects ofthem
There is a lowest commondenominator however, which is communallydetermined by the community of providerswho all would agree that this is thebasic minimum that must be fulfilled inorder for that provider, in that space, atthat time, with that particular patient,is meeting the standard of care Now asyou can imagine, that becomes somewhatcontroversial So the doctor defendant isgoing to find medical experts that sayshe met the standard of care As aplaintiff's attorney, one of myobligations or responsibilities is tofind medical experts that will furthermy client's case, which is to establish thatthere was in fact a breach or aviolation of the standard of care
So medical negligence or a violation ofstandard of care is a critical elementin furthering a medical malpracticelawsuit, but it's not the only oneSo we were talking about the elements that arerequired or must be fulfilled in orderfor there to be a successful medicalmalpractice lawsuit, for there to be aresolution to it that is hopefully infavor of your client Well you clearlyhave to have medical negligence,that's that standard of care that we'vebeen talking about Our argument is ifthere's been a violation or a breach inthe standard of care, that equals medicalnegligence
But that's not enough We thenhave to prove that that medicalnegligence actually resulted or causedthe damages or injuries that we'reclaiming harm for And sometimes whathappens is, is there can in fact bemedical negligence, but there may be someother intervening event, or some othercomplication that actually resulted inthe harms And so we have to veryclosely – proximately is the legal term -but I tell my clients that means it hasto be closely connected, not just ageneral sense of, "well this could havecaused that
" But no, we have to yolk ittogether very nicely and tightly thatthe medically negligent act is whatdirectly and proximately caused theharms for which we are now seekingrecovery Sometimes, a case can actuallyfail, not because there wasn't anynegligence, and not because there weren'tsufficient damages that are substantialand permanent, but because of aninability to connect causally themedical negligence and that harm, whichis why one of the medical experts thatare utilized in medical malpracticelawsuits are actually causation expertsSo you can have a standard of careexpert to talk about how the standard ofcare was violated or breached, but thenyou also will require a causation expertwho can use her special expertise to say,"I believe based upon a review of all ofthe facts in this case that thatmedically negligent act in fact causedthe harms for which we are now seekingdamages or recovery"