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Texas trauma surgeons lose at trial with the "blame the patient" defense

Jury sided with plaintiff who alleged trauma surgeons didn't order antibiotics despite contaminated deep laceration from hand to shoulder

A common focus of medical malpractice defense lawyers is finding someone else to blame for what happened to a plaintiff. Frequently, the target of that blame is the patient, who, of course, is the plaintiff in the medical malpractice lawsuit.

I often get a laugh from our middle-aged or senior clients when I tell them not to be surprised by a deposition question from a lawyer for a defendant hospital or doctor about a childhood stubbed toe injury they had. That’s really not much of an exaggeration, though.

Under Texas law, medical malpractice plaintiffs must disclose to defendants every hospital, physician, and health care provider who provided treatment to them within the previous five years. This isn’t limited to treatment related to the medical malpractice claim, but includes any care or treatment whatsoever.

Defense lawyers invariably order these medical records, and even others going further back in time. They then scour through them to look for any pre-existing medical condition, prescription medication, impairment, or social habit that can be used to cast question or blame on the plaintiff.

Part of this technique is informed by a concept in social psychology called fundamental attribution error. Here’s how it works. When we hear about something bad happening to someone else, our brains automatically try to put ourselves at ease by searching for an explanation for why that bad thing wouldn’t have happened to us. 

For example, let’s say we hear on the news that a violent assault and robbery occurred nearby in the middle of the night. Our brains might minimize the personal risk posed to us by thinking “that wouldn’t happen to me because I wouldn’t be out in the middle of the night.”

Skilled and experienced medical malpractice lawyers for plaintiffs (patients) know how to combat fundamental attribution error and blame casting on the patient. This was recently illustrated in a Travis County trial involving care provided to a man in his late 60s at St. David’s Round Rock Medical Center.

The man fell through a rotten, unstable deck at a residential home where he was doing some contract work. He was injured during the fall, which ripped open his arm from his hand to his shoulder. The wound was contaminated with dirt, splinters, and debris. 

He was admitted to the hospital by the trauma service and during a short hospitalization was cared for by two trauma surgeons. According to the lawsuit allegations, he was discharged the next day without any preventative antibiotics being started or prescribed. 

Meanwhile, the dirt in the man’s wounds had seeded a massive infection. Four days later, he returned to the hospital and spent 10 days on strong antibiotics, endured five surgeries and had his arm amputated.

At trial, the defense attorneys and their witnesses cast blame at the patient because he was a smoker. In the words of the defense attorney, “the die was cast” 50 years ago when the man had started smoking.

Fortunately, the jury could see through the smokescreen. (Sorry for the pun). They returned a $1 million verdict for the plaintiff and found both trauma surgeons at fault, along with the hospital itself.

If you’ve been seriously injured because of poor hospital or medical care in Texas, then contact a top-rated Texas medical malpractice lawyer for free consultation about your potential case. An experienced medical malpractice attorney knows how to overcome tort reform challenges and common defense tactics such as blaming the patient.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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