Q&A: If I am considering a medical malpractice lawsuit, should I go back to the same doctor for more treatment?

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Q&A: If I am in the process of a medical malpractice lawsuit, should I go back to the same doctor for more treatment?

Attorney Bill Rogel: That's a really good question. It's one we get a lot. The answer here is basically, it depends.

Look, we never give medical advice. And if you believe that a specific doctor can give you or a loved one the best medical care, then you should do what's best from a health perspective. You should never let a legal case drive an important medical decision.

However, from a legal perspective, we do not recommend continuing treatment with a doctor that you believe may have committed malpractice.

Again, unless absolutely necessary from a medical standpoint or a treatment standpoint. And the logic here is simple, right? First, medically, why would you want to keep treating with a doctor that you believe committed malpractice on you?

If you think that doctor was negligent, common sense would have you question whether or not it's safe to continue getting care from that same doctor.

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But secondly, you know, jurors, finders effects down the road, they can be skeptical of a patient who in one breath is saying, hey, I think that doctor committed malpractice on me, but on the second breath keeps going back to that doctor for additional follow up treatment. It makes it really easy for a juror to decide they don't believe you. Now, this can be a little bit different if you believe it was like the hospital and not the particular doctor.

But again, any chance you have to get out of the treatment from the person who you're alleging committed malpractice is, from a legal perspective at least, ideal.

Now, we understand the practical realities. Changing a doctor is hard. There's insurance situations. Sometimes you can try to change doctors and not be able to.

And again, your medical concerns need to come first and foremost. Worry about the legal case secondarily. But the other thing I would add is some of our best witnesses in med mal cases have been doctors who've done follow -up care.

Now, usually the doctor you go to is less apt to want to take your case if they know they're working on a patient who the prior doctor has messed up on. But if they're willing to take your case and they go in there for a corrective surgery and they're able to talk in their testimony about how messed up the situation was, that can be really powerful evidence.

And it gives you, in addition to your kind of, disinterested expert who you hire to come in and give opinions, you also get to have fact witnesses come in who are doctors and who are able to either explicitly or implicitly tell a jury or a finder of fact here that the first doctor messed up.

That can be a great witness.

So legally, you should always try to go see a different doctor. Practically, we know that you can't always do that, and you can't jeopardize your health.

There's a gray area too. Are you going back to the same doctor for a surgery? That I’d be very hesitant to do. But there are times where you can go back to the same doctor to find out what happened. I mean, if you're worried about your health, the more information you have, the better.

And if you're worried about going back to the same hospital, get a second opinion within the hospital. But don't be afraid to ask, did something go wrong? Why is this necessary? Because that information can be crucial to your case.

I would add on top of that, you should at least consider the possibility and if you're in this position if you're asking me this question you obviously are considering the possibility of hey should I switch to another doctor and If you make some inquiries talk about scheduling an appointment or get a second appointment at least then if you get cross-examined on it later “Why'd you go to the same doctor??” you have answers.

“Well, look, I tried and my insurance company wouldn't let me” or “I would have had to change systems” or you know “I tried to make three appointments and none of the doctors would see me because they didn't want to be involved kind of cleaning up someone else's mess”, then at least you have an answer if that question is put to you explicitly.

The other thing is, and we struggle with this all the time in med mal cases anyway, even good doctors commit malpractice, right? The fact that someone made a mistake once does not necessarily mean they're going to make that mistake or more mistakes going forward. You know, we analogize it to driving, right? There are some people who are just unsafe drivers and get in a bunch of accidents.

Once you figure out that person, you don't get in the car with them. But even people who are good drivers might have a lapse now and then or might make one mistake. When they do, legally, they should be responsible for that, right?

The fact that I'm normally a safe driver and on this particular day got so distracted that I ran a red light and hit you with my car, I should still be liable, right? The fact that I'm a good driver the rest of the time does not mean I'm not responsible. But it doesn't mean that you can't get in the car with me later because one accident does not an unsafe driver make.

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And similarly, one case of malpractice doesn't mean that you're an unsafe doctor. And a lot of jurors approach it from kind of that perspective, where it's almost like we have to prove that this is a bad doctor who does bad things all the time.

This isn't a criminal case. It doesn't have to be intentional. Our civil responsibility system says, look, if you were negligent and people are negligent, you're responsible for the consequences of that negligence. We don't have to judge your character to say that you're responsible for the consequences of one single negligent act.

And so it's certainly possible medically that, you know, a doctor who's otherwise fine and is the best person to continue caring for you made a mistake one Tuesday. And it's unfortunate that our advice has to be from a legal perspective, at least to consider switching doctors, because the fact that you because a juror is likely to find the fact that you went back is argument against the doctor having made a mistake. And that shouldn't be how it is. That's not that's not the reality of the situation.