The key question in these cases is what was the standard of care at the time of the alleged negligence. Unlike in law, where we have years of cases telling us what the general standards are, in medicine, there are few corollaries. If you are an OB-GYN, there is the American College of Gynecologists (ACOG) that outlines a lot of care protocols. But, for a lot of the other areas of medicine, the standard of care is usually what an expert or experienced doctor says it is. For example, if you are performing surgery and cut a ureter by accident, is that below the standard of care? Probably not. You may be harming someone because you affect their urination or cause a significant infection etc. But, is it below the standard? Probably not because it is in the surgical field you were operating in and a nearby structure. How about cutting something else? Maybe you cut a nerve that cannot be repaired? That may be below the standard of care if you are operating in an area with several significant nerve endings. You are not supposed to cut structures that look like nerves, which are generally white fibers, as opposed to ureters which are less distinct. As you can see, judgment call cases don’t make great malpractice cases if they are subject to disagreement over what the standard is or was.
The stronger cases are ones where what the doctor is saying simply cannot possibly be true or accurate. If a CT scan result shows that there is a possible bleeding artery in the abdomen, every doctor who sees that needs to respond immediately. When doctors say that they were not aware of that CT study, that is a problem for their defense. The immediate next question is well, had you known, would you have acted differently and would the patient have gotten more appropriate care sooner? Often, this is a critical point. So, I am always more interested in the cases where there is a clear miss or omission or something objective than the judgment cases.
For example, there are a lot of failed back surgeries. They fail because back surgery is still not easy or predictably successful in all patients. Basically, if you have a fusion of your spine, you are going to end up with pain elsewhere because your body has some issues with your spine. It does not usually mean the doctor made an error. In fact, there is a condition called Failed Back Surgery Syndrome, which usually means that the patient has had a bunch of back surgeries without resolution of their pain. Needless to say, these are not good cases in which to sue your surgeon.