Medical Malpractice Attorney
As a medical malpractice lawyer, I struggle with issues of evidentiary proof on a daily basis. It is always difficult to prove any element of a medical negligence case – negligence, causation or damages – because medical concepts are foreign to most lay people who sit on juries, the defense team can always present credible and convincing experts who create disputes about key issues in the case, and often general medical principles do not apply in individual clinical scenarios. We constantly struggled to prove that the negligent acts of a physician or nurse “proximately caused” a patient’s injuries. To do so, we must go back in time and show that proper care would have resulted in a different, better outcome. In many cases, this is just not possible.
One difficult area of proof in medical malpractice litigation involves the issue of racial bias. It is well established that black Americans receive more negligent care than do white Americans. One of the most egregious examples involves maternal and infant mortality. During labor and delivery, black mothers are much more likely to die than white mothers. Further, their babies are much more likely to die. In fact, infant mortality in the United States’ urban areas is comparable to infant mortality in Third World countries. Clearly, racial bias is at play.
A recent study lists racial disparities as one of the top 10 biggest patient safety concerns for 2021. But proving that racial bias resulted in substandard medical care, including medical mistakes and medical errors, is daunting in an individual case. Not only is it difficult to prove that racial bias was a factor in a particular case, medical malpractice lawyers cannot even collect data from hospitals to show a pattern of disparate racial treatment due to privacy considerations.
Unfair, disparate treatment costs lives and leads to extended hospital stays, extended sickness, chronic disability, lost wages, and excessive medical bills. However, is it necessary to prove racial prejudice in healthcare in order to prevail on a medical malpractice lawsuit? The short answer: no.
In order to prove a claim for medical malpractice or medical negligence, the plaintiff must prove 3 elements: negligence, proximate cause and damages. Negligence is defined as substandard medical care. In many instances, medical negligence can be established by looking to published guidelines or consensus statements that govern particular medical investigations or treatments. Absent a written guideline, experts are required to show that a reasonable physician would act in a certain way under the circumstances presented in your case. Proximate cause is proven by showing that, had accepted standards of medical care been applied, a catastrophic outcome would have been avoided. Damages simply means the economic value of the harms and losses caused by the act of medical negligence.
As you can see, none of these elements require proof of racial disparity. Likewise, a plaintiff need not prove that a physician was incompetent or drunk at the time of administering negligent health care. Instead, proof of racial bias would only serve to substantiate a claim for punitive damages.
Though we know that racial disparity is prevalent in healthcare and leads to increased mortality and morbidity for black Americans, for now, it does not play a significant role in medical negligence litigation. If you are the victim of medical malpractice resulting in serious personal injuries, you should contact a medical malpractice attorney, like the office of Mishkind Kulwicki Law Co., L.P.A. to determine your rights.