Toward the end of his life, Supreme Court Justice Potter Stewart said that he had second thoughts about a statement he made in a 1964 opinion. He had recanted earlier, but in this interview he admitted that he hoped he would not be remembered for saying, "I know it when I see it." He was talking about hard-core pornography.
The expression came to mind during a discussion of medical malpractice, of all things. Can the law define medical malpractice, or does it simply know it when it sees it?
The Pennsylvania General Assembly adopted a formal definition of medical malpractice in 2002. The law is a little different from other states' approaches: The definition applies to a legal action or claim rather than the specific components of the malpractice itself.
A "medical professional liability claim," according to Pa. Cons. Stat. Ann. § 1303.103 (West), seeks to recover damages or loss from a health care provider -- that is, a doctor, hospital, nursing home, etc. -- arising out of any wrongful or negligent action or breach of contract that causes injury or death, provided the injury or death … the legalese goes on for a sentence or two.
It is a long definition, and it covers a lot of territory. When courts look at these claims, they weight them against each element of the definition. The rest of us, though? Do we just know malpractice when we see it?
Maybe not. Malpractice claims come in all sorts of shapes and sizes.
For example, did you know that an error in lab work could be the basis of a malpractice claim? Or that you must formally consent to a blood transfusion (unless it's an emergency)? Consider the risk of birth injuries, too. Emergencies happen during labor and delivery, but doctors and nurses are trained to handle emergencies. It may be more than bad luck that resulted in your child's cerebral palsy.
It is difficult, too, to realize that a trusted family physician has missed an important diagnosis. But that may be malpractice, and you may have medical bills and long-term care needs that you should not have to pay for.
At the law firm of Dorian, Goldstein, Wisniewski & Orchinik PC, we can help you determine if your injury could be the result of malpractice. Our attorneys can ask your providers the hard questions to get to the bottom of a botched surgery. We can focus on your claim while you focus on your health and well-being.
Call us with questions about your situation. We know the law, and we are here to help.