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Let me share this example with you. Let's say you have a dental problem. You go to the
dentist and the dentist works on a complaint you have about an upper molar on the left
side. And after finishing that, he does the tooth in front, the tooth in back, a tooth
on the bottom, a tooth on the other side and three years later you wind up having another
complication with that original tooth you went to him for. And the dentist who now treats
you - a different doctor - says "I can't believe what you had done on the first visit 3 years
ago. The guy was a total schmuck. He didn't know what he was doing." Now you're going
to need your tooth extracted. Now you're going to need an implant. Now you're going to need
all this treatment all because of the following things. Is there continuous treatment? From
the patient's point of view what do they know? They know they've been going to this dentist
who's been working in their mouth for the last two and a half, three years. Right? So
they think, yes, there is continuous treatment. I'm going to this dentist. I'm going to this
doctor and that's their thinking. And they have a right to think that way, it's natural.
But from an attorney's standpoint, from a legal position, we have to look at those records
and see which tooth was it that the dentist treated. Was it tooth 15? Great. Now the dentist
next worked on tooth 16 and then 14 and then 22. Well if the doctor did no treat the same
condition or same complaint that the patient originally went to them for, that patient
does not get the benefit of continuous treatment and extending that time to file suit. So they
would be out of luck. And again, that's the state of the law as it exists today and that's
why it turns out to be a travesty for many people who have this type of scenario. Alright.
I'm going to talk now about something called 'judgment calls.' Many defense attorneys love
to argue that the issues that arise in malpractice cases are judgment calls. And do not rise
to the level of what we call 'departures from good and accepted medical care.' And let me
give you an example of how that comes up. Let's say you have a medical problem and you
now go to 5 different doctors to evaluate that medical problem. Four of them tell you
let's treat it this way. The fifth doctor says no, we're going to treat it this way.
And you like the fifth doctor better. It's more, it's less invasive. They're less problems
associated with what he's recommending and you opt to have that done, that procedure
done with doctor #5. Lo and behold, you wind up getting a significant complication with
doctor #5 and you turn around and say, "Doctor, what you recommended was a departure from
good and accepted practice." Well, merely because of the fact that the doctor's choice
to use one procedure over another does that in and of itself give rise to malpractice?
How many of you think yes? How many think no? You are right, the ones who said no. And
here's why. As long as the treatment that's being offered is within medical accepted standards
- even though it's not in the majority, even though most doctors would not do that type
of procedure -- as long as it's still medically acceptable, if the patient has the procedure
and goes forward, has a complication. The mere fact that the doctor chose to use one
procedure over another does not necessarily give rise to evidence of malpractice and that's
a concept that a lot of injured patients don't recognize. And they say but all these other
doctors say I should not have had that done. They wouldn't -- and the phrase I hear often
is -- they told me they wouldn't do it. Well, that's what prompts the call to the office.
And when I explain to them that that does not equate to malpractice, they get very upset
and they get very angry. What do you mean? My doctor told me that they never should have
done it. Well he never would have done it but if the medical community still recognizes
it as something that is an option and is an acceptable option, then you're going to have
a very tough time getting a medical expert in to prove that there is wrongdoing, that
there's a departure from good and accepted care.