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Malpractice is a constant concern in the medical industry, but as often as medical providers bemoan their increased malpractice insurance rates, most people don’t worry about being harmed simply by visiting their medical provider. Rather, as trusting as some patients are, it’s clear that concern and skepticism of the medical establishment varies widely based on a number of important factors. The most important of these factors, however, can be reduced to the question of who matters in our healthcare system.

When it comes to medical care, it’s clear that all patients are not treated equally, and a growing number of patients are raising the alarm. That means more than just identifying dangerous doctors and forcing them out of practice – and out of the public eye – but remedying the many forms of bias that lead to improper treatment in the first place.

Medical Bias: The Elephant In The Room

Of the many causes of medical malpractice, perhaps the one getting the most attention today is implicit bias, especially racial and gender bias – or at least what we’d like to perceive as implicit bias. Asserting implicit bias, after all, depends on the idea that cases of mistreatment or misdiagnosis are caused by unconscious assumptions about the patient. Accurately naming what is happening in many cases of misdiagnosis, however, might mean looking at more conscious types of bias.

Are medical professionals consciously mistreating patients? While this may seem like too bold an assertion, often what we call implicit bias is really the result of improper medical education that compounds a doctor’s preexisting racism or sexism, such as the common belief that Black patients actually have “thicker skin” and experience less pain than white patients. Or, the practice of only modeling dermatologic symptoms on pale skin, which makes it harder for darker skinned patients to receive accurate diagnoses – does this facilitate malpractice down the road? It’s a question worth considering.

The Makings Of Malpractice Claims

As concerning as they are, the foundational errors that may contribute to malpractice in the first place, are not of much use to patients hoping to make a malpractice claim. Rather, patients and their families need to navigate a legal system that demands they prove four key points: that the provider in question had a “duty of care;” that what the provider did or failed to do directly caused the injury; that the provider’s action deviated from the standard of care; and that those injuries were caused by some form of negligence. It’s a lot of moving parts, which is why it’s so important for patients to have an experienced malpractice lawyer on their side.

Skilled malpractice lawyers are able to see through the many moving parts that go into any individual patient’s care and identify those elements that actually contribute to their malpractice claim, whether it’s an issue of wrongful life, avoidable injury, or something else entirely. This might involve looking at a patient’s medical records, examining the many possible treatments for a given condition, interviewing expert witnesses, and many other lines of inquiry. Sometimes, the mistake is an obvious one – in which case, the provider will likely settle, but in other cases, the records offer more questions than answers.

New Points Of Evidence

One interesting thing about addressing medical malpractice cases today is that patients sometimes leave their own trail of evidence regarding their treatment. This is what happened in the case of Amber Rose Isaac, a New Yorker of mixed Black and Puerto Rican heritage who died after undergoing an emergency C-section last April. Isaac knew that she was vulnerable, both as a woman of color and because she developed HELLP Syndrome during pregnancy, a typically non-fatal condition that can interfere with blood clotting. She even changed providers after experiencing multiple cases of mistreatment in the course of her prenatal care, and planned on hiring a doula or midwife to give birth at home, a choice that has been shown to lower maternal mortality among women of color.

Many patients who experience medical malpractice can make similar claims to Isaac that they “did everything right” but one thing that sets her case apart from similar cases of maternal mortality was that she had actively been recording her complaints on social media prior to her death. Isaac knew she was being treated poorly compared to other patients and she wanted to hold the system accountable.

Second-Class Citizens

Isaac’s case represents a clear situation of mistreatment related to race, but when we talk about medical malpractice, we shouldn’t overlook how the legal system also creates a group of second-class citizens. In particular, malpractice caps, which typically apply to non-economic damages, treat women, children, and senior adults as less worthy of compensation for losses. Caps apply regardless of a case’s “merit,” the way the harm was caused, and they have the potential to create enormous gaps in the the potential value of a case. The gap is generated on the basis of who was harmed, rather than the harm done.

Medical malpractice is a fraught sector, one marked by the pain of patients and their families, which can make it hard for victims to feel they’ve achieved justice, regardless of what the legal system says. That being said, there are countless changes to both healthcare proper and the legal system that supports it that could make patients safer and give them the support they deserve. The only question is, do we have the will to push for those changes?

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