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Medical malpractice is defined by Merriam-Webster as careless, wrong, or illegal actions by a doctor who is performing a professional duty. Most medical-legal cases are settled for a variety of reasons, however, those cases that make it to a court of law rely on experts to teach, train, and educate the jury.

The importance of choosing the right medical-legal expert can turn a sure victory for the plaintiff into a common sense verdict for the provider.

Let me give you an example.

I was asked to review a chart of a patient that had a normal left kidney removed during an elective splenectomy.

The patient was a 45-year old female who presented with chronic abdominal pain and the CAT scan confirmed a mass in the spleen. After several opinions by 2 different radiologists, the potential for a malignant tumor could not be ruled out radiographically and surgery was recommended.

The surgeon performed a laparoscopic splenectomy and his operative note documented "a significant inflammatory response" and the tumor appeared fixed to the surrounding organs. The case proceeded without complications, however, the pathologist called the surgeon several hours AFTER the completion of the surgery to state he sees a normal kidney attached to the splenic tumor.

With honesty and integrity, the surgeon testified that he did not know the kidney was part of the tissue removed, and was as surprised and shocked, similar to the pathologist and eventually the patient, when she was notified later that evening.

The patient did well from surgery, the final pathology of the splenic tumor was benign, and at the time of the trial 5 years later, her kidney function was normal and she suffered no untoward effects.

As I testified before the jury, it was my job to explain how the removal of a normal kidney could happen and why I honestly believed the surgeon met and exceeded the standard of care.

I first reminded the jury of the indication for surgery. Remember, the presumptive diagnosis was a splenic cancer so it is the duty of the surgeon to remove anything in the way for a potential cure. The surgeon does not have the luxury of X-ray vision and there is no way of knowing the true nature of the growth until the pathologist finishes his or her microscopic examination, which can take up to 7 days of special staining and sectioning.

Second, I stated that ONLY because the splenic lesion eventually was deemed benign, that a lawsuit was brought against the surgeon.

Think about it again.

If the splenic mass was cancer, the surgeon did the right operation. He removed anything attached to the malignancy.

If the tumor was benign, then it is malpractice? How did he know?

The definition of the standard of care is what the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.

The jury listened, understood, and returned a favorable verdict for the surgeon.

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Stephen M. Cohen, MD, MBA, FACS, FASCRS, has over 25 years of experience and is double board certified in General Surgery and Colon and Rectal surgery. In his new position, Dr. Cohen is leading the way for improved surgical care in Southern West Virginia. He is starting a new surgical program while utilizing his general surgery, endoscopy, and leadership skills as Director of Acute Care Surgery at Greenbrier Valley Medical Center.

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