If there are two things I have learned from the recent contract disputes over event horses, such as the Henny situation, it’s that eventers don’t know enough about the important legal issues and that such ignorance has the potential to cause us major problems. Fortunately we have a longtime eventer and EN, Kate Shearer, who is a law student at the highly decorated Arizona State University’s Sandra Day O’Connor Law School. Kate has agreed to write a series or articles about legal issues for EN specifically tailored to eventers. All of Kate’s articles have been proofread and approved by at least one of her professors, but of course you should consult your own lawyer for any specific legal direction. This first article deals with the issue of medical malpractice. Please submit your questions and ideas for future posts to Kate as comments on this post. Thanks for writing this Kate and thank you for reading.
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From Kate: Medical Malpractice/Injury-What happens when something happens?
Medical malpractice and injury is a very interesting area of the law. Often, the negligence involved may be very minimal. However, in extreme cases, a doctor’s negligence could result in the amputation of the wrong limb. Medical malpractice and injury is a vast field of law, and there are many policy reasons behind the continuous reforms of the law itself. In addition, medical malpractice claims tend to deal with substantial amounts of monetary damages (many of times in the millions and multi-millions), as well as potential compensation for pain and suffering!
I thought this would be an interesting area for us to explore, because the reality is, most of us will end up in the emergency room at some point in time due to horse related injuries. Not the most pleasant thought, but a reality nonetheless. Today, while I was sitting in class (Medical Malpractice/Injury Law), I realized….how many times have you or I ended up in the emergency room and been sent home with a misdiagnosed injury, or a missed injury? While I do respect most doctors, they are all still human, and make mistakes. Unfortunately, a doctor’s mistakes can cause a lot of damage. For example, when my father fell and his horse rolled on him, he was seen for his broken arm and crushed chest/lung (He had to be air-evacuated, scary!), but the emergency room physicians missed his separated shoulder. This injury was readily apparent in the x-rays taken by the emergency room staff; however, it wasn’t until almost six weeks later they realized his shoulder was separated. By that time, scar tissue had formed so my father was forced to go back under the knife to fix it. As a result he had to go through eight months of physical and occupational therapy. This kind of oversight happens often, and in all hospitals–it is fact of life. So can, what, and how does a person handle such an issue?
Medical malpractice/negligence relies on the basic principles of tort law, specifically negligence theory. To build a case, one must normally show that there was a duty owed to you (by the doctor, the hospital, the employer, etc), that the duty was in fact breached, and that the breach did in fact cause or amplify an injury (either through proximate causation, or cause in fact), in addition to proving the extent and nature of your damages. Negligence is often defined as the failure to act as a reasonable and prudent person would under the circumstances. The “standard of care” is what a reasonable person would do under the circumstances.
In medical malpractice/negligence cases, the reasonable person standard is based on what is customary for doctors in that field. 99.9 percent of the time, proving your claim requires the use of “experts”, who are fellow doctors specializing in the same field. The other 0.01 percent of the time, cases can be argued on the basis of res ipsa loquitor (“the thing speaks for itself”). In these types of claims, the injury could not have happened without some sort of negligence. For example, a patient wakes up from surgery for an appendix issue with neck pain and paralysis (See Ybarra v. Spangard).
Medical malpractice/negligence cases can be quite expensive to pursue though! Thankfully for the plaintiff (injured person), cases are brought on a contingent fee basis, with a typical lawyer’s fee being around 40% of the award. I KNOW that seems high, but the lawyer pays for all the costs involved. This means your attorney bears a good bit of the financial risk, so if the case is not won, he or she is out that money, which can sometimes be in the seven figures!
The larger point is, medical malpractice/negligence happens all around us, all the time. Doctors make mistakes, and we run these risks. Fortunately for us eventers, sometimes we have an avenue of reimbursement for those injuries. This in no way means we should all get “sue happy”, but if there has been an unjust act or injury due to the negligence of someone else, I believe it should be brought to attention and something done about it.
