Why hurt and pain are not enough under the law

My precious little girl will often cry when she is sad, or she feels challenged, or her feelings are hurt, etc. 

As a parent, I try my best to recognize the pain. To hear it, name it, and give her freedom from it by recognizing it as being real. But often, I recognize that what she thinks caused her pain (my refusal to let her play barbies, or wear her sandals to school or some other decision) DID NOT ACTUALLY CAUSE HER PAIN. 

Rather, she is just exhausted. Or hungry, or both. Or minutes before, someone was unkind, or she felt alone. 

I cannot control what she perceives is the cause of her pain. Nor can I convince her the cause lies elsewhere. That it not a helpful for fruitful exercise.  

Our office has the privilege of speaking to folks who are often in their darkest moments having suffered some great pain, or loss, or disability. I listen as I hear of unfair treatment, or horrible results from what appeared to be a simple medical procedures. And many days, all I can do is listen and recognize that pain. A lawsuit is not always the appropriate response. In fact, it rarely is the appropriate response because, just like my precious girl, the cause of that pain is not always what people think it is. 

Virginia law provides that medical malpractice cases can be filed when:

  1.  A healthcare provider has certified that the care received by the patient was not ok, but sub-par, negligence, below the standard of care; AND

  2. The negligent care caused a horrible result; AND (sorry for using caps – I know it irritates my grammarian friends, but here it provides important emphasis)

  3. the patient suffers and is caused financial harm. 

It is not enough that you lost a limb, or a loved one, or your job, or worse. Yes. I sadly mean that under the law, it is not enough that you have suffered the worst kind of loss. Pain is not enough. Suffering is not the only element. We must prove that someone’s neglect was the cause of that pain, not some pre-existing condition, or the underlying disease, or normal behavior, bad luck, genetics, etc. Neglect must be a cause.

So while I cannot often (and should try less in many ways) to convince my sweet girl that her friend was not unkind to her, warranting the fits of rage and tears, it is my job to explain to grieved families whether they have a lawsuit. And the result is often the same – the pain is so great, they cannot see how cause and effect even matter.

So I will take another call – listen, and do my best to hear and recognize the pain.  And then, I will dig in to see whether human negligence was the cause. That’s all we can do. 

 

 

Lauren Ellerman

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.