CBS’s Mark McEwen Loses Medical Malpractice Case
Former CBS “Early Show” personality Mark McEwen’s medical malpractice case was recently dismissed by a Federal judge, on the grounds that he could not prove that the anti-stroke drug that doctors failed to give him would have prevented the disabling stroke he suffered. Shortly after McEwen went to an Emergency room with classic stroke symptoms, he was sent home with a stomach flu diagnosis. McEwen’s attorneys, and presumably his medical experts, believed that if he had been given proper preventative treatment-aspirin and blood thinners—he would not have suffered the subsequent stroke that cost him his career.
Negligent But Not Able To Prove Causation
This is a classic example of a malpractice case where it is easy to prove the doctors were negligent, but the case is lost due to an inability to meet the legal standard to prove causation. This causation requirement applies to all California cases. In any case involving failure to provide timely, correct treatment, you must also prove that, if the treatment had been given when it should have, you would “probably” have had a much different outcome. Here in California, “probably” means more than a 50% chance. So, if the treatment—be it radiation, pills, an operation, etc.—would have given you a 40% chance to avoid harm, there is no case.
Difficulties of Causation Requirement in Medical Malpractice Cases
This causation requirement can be very hard for a malpractice victim to accept. Explaining to clients that they don’t have a case, even though there is clear evidence that a doctor committed malpractice is a tough part of my job. Some defense lawyers call this the “so what” defense, as in, “so what, you didn’t get the care you should have, but you can’t prove it would have helped you.”
What If’s in a Failure to Treat or Misdiagnosis Case
Of course, it’s always hard for the medical experts we must have in these cases to perform this type of “what if” analysis, and tell us what would have happened to a patient if he/she had been given proper care at any given point in time. And doctors who are sued can almost always find experts to support a “so what” defense in cases of failure to treat or misdiagnosis.
In McEwen’s case, he didn’t even get to present the issue to a jury. His case was dismissed on a pre-trial motion. One bright spot in all this is that juries in California tend to give malpractice victims the benefit of the doubt on causation questions at trial, once a strong case of malpractice has been proved.
Talk to a Medical Malpractice Attorney About Your Case
The attorneys at Callaway & Wolf have the experience to help you evaluate your medical malpractice case. Visit our offices in San Francisco’s Financial District to discuss your case for free. Click now to set up a free case evaluation with an attorney.
Boone Callaway is a personal injury & medical malpractice lawyer in San Francisco who has been working with clients in the Bay Area for over 25 years. Mr. Callaway is one of only a few personal injury litigators in San Francisco who is a Super Lawyer, AV Rated and is also a member of ABOTA – American Board of Trial Advocates.
