A surgeon performs elective surgery on Patrick John Smith. Smith later complains to his surgeon about pain resulting from the surgery. His surgeon dismisses his complaints as not credible and eventually withdraws from the case. Smith is then treated by another surgeon, who determines that Smith developed complications from surgery and that the delay in treatment has made the complications worse. Smith sees an attorney about a possible lawsuit against the first surgeon.
What is your question?
The typical theories surrounding a malpractice claim are:
Lack of Due Care: The professional did not live up to the governing standards of professional care and conduct.
Lack of Informed Consent: In a health care context, the professional did not adequately inform the patient of risks associated with a course of treatment, such that the plaintiff could understand and knowingly consent to the treatment, or could make an informed choice between multiple treatment options.
Abandonment: The professional at some point abandoned the plaintiff, rather than fulfilling duties owed to the patient;
Vicarious Liability: (Also "negligent supervision") A third party, perhaps a clinic or hospital, had a duty to properly screen and supervise the professional it permitted to offer services from its premises, and shares liability for the plaintiff's injuries due to its failure to satisfy that duty (e.g., by authorizing an incompetent doctor to offer services to patients of the facility).
Injury to a Third Party: The professional engages in conduct which creates some form of duty to a third party, and then engages in conduct which causes harm to that third party. For example a psychotherapist might meet with a patient's spouse as part of a course of treatment, and then engage in professional malpractice or misconduct which results in harm to the spouse (such as causing the breakdown of a marriage).
I think here you have Lack of Care and Abandonment involved in your case.
In this situation, Patrick John Smith might have a potential case for medical malpractice against the first surgeon. To determine the strength of his case, several factors need to be considered. Here's an explanation of the key elements that are typically considered when assessing a medical malpractice claim:
1. Duty of care: The first consideration is whether the first surgeon owed a duty of care to Patrick John Smith. This is usually established when a doctor-patient relationship exists, and in this case, it does since the surgeon performed elective surgery on Smith.
2. Breach of duty: The next step is to determine if the first surgeon breached their duty of care. This means evaluating whether their actions or omissions fell below the standard of care expected of a reasonably competent surgeon. In this case, if the surgeon dismissed Smith's pain complaints without adequately investigating or providing proper treatment, it could be considered a breach of duty.
3. Causation: To have a valid claim, it must be proven that the surgeon's breach of duty directly caused harm or injury to Smith. In this case, the second surgeon's findings of complications and the worsened condition due to the delay in treatment suggest a potential causal link between the first surgeon's actions and Smith's suffering.
4. Damages: Lastly, Smith must demonstrate that he suffered specific damages or losses as a result of the alleged malpractice. This can include physical pain, emotional distress, medical expenses, lost wages, or other financial burdens resulting from the complications and delayed treatment.
To fully assess the viability of a medical malpractice claim, it is imperative for Patrick John Smith to consult with a qualified attorney who specializes in medical malpractice cases. The attorney will collect medical records, consult expert witnesses, and evaluate the facts to determine the strength of the case and the potential compensation available to Smith.