Why You Might Not Be Able to Sue for Medical Malpractice, Even if a Doctor Makes a Mistake (and Why You Need to Be Your Own Advocate)

Imagine you called a medical malpractice attorney with the following story:

Rosa photo

“I had a terrible sudden pain in my abdomen and started vomiting uncontrollably. I went to ER and they told me it was just food poisoning and to go home and rest and drink fluids and to go see my regular doctor in a few days if it didn’t get better. That night I still felt really horrible, so I went back to the ER at a different hospital. They immediately rushed me to emergency surgery. At the second hospital, they told me it was lucky that I came in when I did because if I had waited a few more hours I could have died.”

It’s a terrible story, right? No one wants to think they could suffer a medical emergency that could bring them that close to death. No one wants to think that they could still end up in that horrible position even after they done the right thing and gone to a doctor to get a medical help.

That’s got to be a slam dunk medical malpractice case, right?

But, most likely, the response from a medical malpractice attorney will be something along the lines of: Thank God you went back to the hospital when you did, but you don’t have a viable malpractice case because fortunately you were able to get the treatment that you needed in time before anything terrible happened. (At least, that’s the response you will get if the attorney you consult is as candid as I am.)

It’s a confusing response. You think, but the doctors at the first hospital did something WRONG; I could have DIED. But, ultimately, thankfully, nothing terrible happened. Yes, you suffered a few more hours of unnecessary pain. But, because you did the very best thing you could do for yourself – which is be your own advocate and be proactive in your own healthcare – you prevented the worst from happening.

You cannot sue for something that might have happened but didn’t.

Even though it’s a big part of their job, doctors don’t always listen. This is especially true in the Emergency Room where the doctors only have limited time to see each patient and don’t know anything about your medical history.

We see it time and time again, even with primary care providers, Ob/Gyns or other providers who have seen a particular patient many, many, times over the years and consistently ignored their complaints. This is especially common in women, whose symptoms sometimes present differently than the symptoms of a man with the same condition, and therefore get discounted or whose symptoms simply get written off as anxiety. (Read this fascinating Marie Claire article for more on that sad subject.)

It’s easy to see how that can lure a person into a false sense of security. We’ve probably all felt the rush of relief of complaining about something to a doctor only to be told, oh it’s nothing, don’t worry your pretty little head about that.

But, not to be alarmist, sometimes it is something to be worried about. When you feel very strongly that something is wrong, you need to do something about it and make sure that you are heard. There are several ways to do this. You can begin by using the relationship with your current doctor to get them to take you seriously, seeking a second opinion, or bringing another person with you to your appointments to corroborate your story and be a second advocate for you.


The medical malpractice attorneys at Fasig & Brooks are here for you when things go wrong. We understand that everyone would rather have good health than a lawsuit, which is why we encourage you to stick up for yourself and why sometimes we feel good about turning down a case. We’d much rather hear about a medical case where something terrible almost happened, but didn’t.

Not every malpractice case is communication problem. One thing we know is that being an advocate for yourself may kill your medical malpractice case, but it won’t kill you. That’s the best outcome of all, and one we want for everyone.