| Kevin |
03-08-2007 11:14 AM |
As unspokenone says, the law of medmal differs from state to state. I think here though, the woman clearly had the ability to mitigate her damages and chose not to.
When we talk about negligence, in very simple terms, we are talking about someone who breaches a duty, is the proximate cause of the harm and somehow damages the plaintiff. If any of those elements are absent, your basic negligence claim (which is mostly what a medmal claim is) doesn't fly.
In medical malpractice, to establish the "duty" aspect, there must first be the establishment of the "standard of care." Usually, this is done with experts. The duty differs from state to state, but mostly, the standard of care consists of whatever the level of care, skill, ability, etc. that the reasonable doctor/caregiver in that locality would be (the standard of care in Hooker, OK, pop ~2,000 would differ from Dallas, TX). Before establishing that this doctor owes anything, it must somehow be shown that he didn't do something he should have reasonably done. No medical procedure comes with a 100% guarantee. Since we don't know whether the doctor breached his duty of reasonable care, to even talk about damages, I think we're jumping the gun.
Even assuming the doctor breached his standard of care, the defendant here has some pretty good defenses. Most states recognize that the defendant cannot sit idly by and watch her damages increase when the defendant could reasonably do something to stop. I can't for the life of me comprehend how the defendant could not determine that after the procedure, she was still pregnant. It seems to me that there would have been a few clues. She should have gone in and been checked out again... even failing that, as many have said here, she could have adopted out. Instead, she has decided all on her own to take the most expensive path. I'm also thinking of the "last clear chance" defense -- that defendant here had the last clear chance to avoid the injury. She chose not to, therefore, anything after her choice should be her fault.
It's interesting to me that Plaintiff's attorney has contacted the media regarding his case (I'm assuming that because we're hearing about the case now... it's not as if the media goes out and finds stories like this on its own). That's pretty questionable ethically. It seems that he may have been trying to blackmail the doctor into settling and the doctor's insurance company called his bluff. My feeling is that this case goes nowhere or is settled for nuisance value.
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