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Page 24 of 99

Modern medicine saves lives, improves quality of life, and prevents future harm. But medical care carries risks. Antibiotics might fail and even cause a worse condition. Heart surgery to prolong someone's life may end that life prematurely. When medical care leads to bad outcomes, people naturally want to know what went wrong and is someone to blame. Most civil negligence claims involve clear rules. For example, we must stop for red lights. Running the light and causing a wreck makes a driver negligent. Rules apply in medicine, but rarely with that clarity. Few cases involve removing the le kidney when the plan was to remove the right, administering 100cc's when 10cc's was prescribed, or a pharmacist dispensing the wrong drug. Most are far harder to discern. Ideally, the patient gets enough information and makes an informed decision to say yes or no to treatment. When doctors properly explain the pros, cons, risks and benefits, the patient has accepted the risk involved. en, failure of a doctor to get the anticipated outcome does not mean there was malpractice. If a patient had a bad outcome that was simply an unfortunate result, not due to a significant error, there likely cannot be a successful claim of malpractice. e law only holds doctors (and other medical providers) responsible when the doctor has not met the "standard of care." In basic terms, if the doctor did what other, similarly situated doctors would agree was appropriate, a bad outcome is just that, and not negligence or malpractice. To apply that standard, the law requires that the patient find a doctor, with similar credentials, willing to testify that the doctor accused of malpractice breached that standard of care. Otherwise, a lawsuit will be dismissed without the patient ever geing a trial. e situation gets murkier when a bad result occurred from an error that led to one of the known, consented risks. For instance, cuing the liver during gall bladder surgery may be a risk. Failing to notice the cut, and closing a patient up with the organ bleeding or leaking fluids internally may be malpractice. Another twist can be failure to inform. e law requires that a patient not only agree to medical care, but also that the treatment be accepted knowing the pros and cons. e patient must give "informed consent." If a patient undergoes a procedure thinking it was safe, then has a bad result, the doctor can be held liable if the patient would not have agreed knowing what the risks were. If you or a loved one experienced a bad result, do not guess, ask the medical provider what happened. If you have doubts about the answer, a second opinion is reasonable. If a legal claim is being considered, then the sooner it is done the beer. Montana and federal law generally have a two-year statute of limitations, meaning if you wait too long you lose the right to bring your case. TEXT BY ROLAND DUROCHER BACK TO BUSINESS S MT SiG MT 25 Roland Durocher has practiced law since 1994. His practice focuses solely on helping people injured in accidents or by malpractice with insurance claims and litigation. Mistake, Bad Luck or Medical Malpractice

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