Do I have a case for failure to prevent my stroke?

Do I have a case for failure to prevent my stroke?

A: In every medical malpractice case the plaintiff, the person alleging malpractice, must prove two things. First, the healthcare provider was negligent. This means the plaintiff must prove the healthcare provider did not follow the standard of care. That is the provider did not do what a reasonably prudent healthcare provider would have done under the circumstances.

Simply the fact alone that the healthcare provider has made some mistake does not mean you have a medical malpractice case. This is because you must also prove that the mistake caused some type of injury. The plaintiff has the burden to prove that it is more probable than not the injury would not have occurred but for the mistake.

In some instances, strokes can be avoided if a special medicine called a “clot buster” is administered within six hours of the onset of the stroke symptoms. This type of medicine is used when the stroke is caused by a clot which cuts off the blood flow to portions of the brain.

Sometimes healthcare providers do not properly diagnosis the existence of the stroke or do not make sufficient inquiry into the circumstances to determine whether or not the onset of the stroke was within six hours. Thus, in some instances these “clot busters” are not administered when they should have been.

However, there is still no case unless the plaintiff is able to prove that but for the failure to administer the “clot buster” medication it is more probable than not the stroke would have been prevented. Proving this element is difficult because the current state of the science is that even with the administration of the medicine the stroke injury could still occur.

In fact, there is a Florida case which holds that because of the uncertainty of the benefit of the medication the plaintiff cannot prove that it is more probable than not the healthcare provider could have prevented the stroke with the administration of the medicine and thus could have prevented injury from the stroke. That ruling has been very damaging to stroke cases.

Now, only the most severe stroke injuries are cases in which we can advise clients to file a medical malpractice suit. Additionally, the victim must have been otherwise healthy.