Legal background

Very few medical malpractice cases make it to trial. The majority of cases are either dismissed, dropped, or settled before trial, and for good reason — trials can be very expensive and the outcome is never guaranteed, especially when a jury is involved. Settling is often the most prudent course of action, especially after discovery, when lawyers on both sides get a much clearer idea of what the evidence will show at trial. In this case in which the plaintiff will need care for the rest of his life, settling was probably a prudent decision.

Protecting yourself

Ms. N’s attorney advised her to settle because the medical experts, even those hired by the defense, were critical of her failure to appreciate the severity of Baby B’s condition and to expedite the referral as an urgent matter. 

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So what should Ms. N have done? Once she identified the developmental delays when the baby was aged 10 months and determined the need for a neurodevelopmental consult, she should have referred the patient immediately, rather than delaying the call for 11 days. 

When the patient’s mother returned at age 11 months and reported that the neurodevelopmental clinic had not yet contacted her for an appointment, Ms. N should have called the clinic to expedite the referral or referred the child elsewhere. And certainly, by the time the patient returned at age 1 year and still had not been seen by the neurodevelopmental clinic two months after being identified with developmental delays, Ms. N should have taken some action. Simply sending the patient for a referral is not enough, especially if the patient is not being seen.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.