Scenario 1: Husband takes trash cans down to the curb on Wednesday morning, and mentions to you that the chore is complete. Good action. Good communication. Good husband.
Scenario 2: Husband takes trash cans down to the curb on Wednesday morning, forgets to mention it. Good action. Bad communication.
Scenario 3: Husband takes trash cans down, but not recycling cans. Mentions nothing. You (wife) spend all day worried you missed trash day / recycling day. Ok action. Bad Communication.
Scenario 4: Husband doesn’t take trash down. Husband doesn’t take recycling down. Husband walks down driveway, grabs paper. Returns. No communication. No good action. Forgets about trash day being Wednesday. As aside, husband is a good man and would never intend to cause you emotional distress or physical harm. Just forgot. It happens.
Scenario 5: Husband forgets to take trash and recycling down on Wednesday morning. Windstorm comes, blows cans over – weeks of trash go everywhere, and you spend four hours in sleet and rain picking up trash and La Croix cans from your yard, neighbor’s yard and entire neighborhood later that evening.
Scenario 6: Husband forgets to take trash and recycling down, neighbor carelessly lights fire pit and spark hits your paper recycling can, catches it on fire and your entire garage burns down.
Why the heck did I start a blog on Virginia law, and malpractice, with a fictional scenario where a man either does or doesn’t do his chore well?
Because sometimes it is difficult for callers, Virginians, perspective clients to understand what is and what is not MEDICAL MALPRACTICE under Virginia law. And I love a good analogy.
Under the above Trash Can Wednesday morning scenarios, husband malpractice has only likely occurred in scenario 6. Yes, even scenario 5 where you are pissed off, wet, suffered emotionally, lost valuable personal time – is not malpractice under the law.
So what is Medical Malpractice under Virginia law?
Is bad communication malpractice? Nope. What if the doctor fails to explain the risks of procedure and one of them occurs? Probably not a case.
What about a failure to diagnose a condition, and now I am treating it months later than I should have? Is that malpractice? Probably not – UNLESS those weeks were the difference between the condition being treatable and it not being treatable.
See below chart.
In sum, in order for the bad thing to be malpractice, you have to link a permanent life changing injury to the bad thing.
So, this is why we turn down 98% of our calls. Because the house doesn’t burn down every time your husband forgets to take the trash down. But when it does, after medical care or a mis-diagnosis, we are here to answer questions for you in a direct but compassionate way.
| BAD COMMUNICATION | BAD ACTION / MISTAKE | MEDICAL MALPRATICE |
| Provider fails to provide correct, accurate or depth of information about a diagnosis or treatment plan. | Provider makes a mistake during a procedure, or delays a diagnosis but patient has suffered no serious harm. | Negligent medical care. |
| Causes patient to doubt, get angry, wish for better communication. | Causes patient to doubt, get angry, but no serious physical harm or loss of treatment chances. | Negligent care CAUSES ADDITIONAL INJURY. |
| Injury was significant enough that is either permanent, or will take months to years to recover. | ||
| NOT A CASE | NOT A CASE | PROBABLY A CASE |
| Write a letter (NOT AN INTERNET POST) | Write a letter or call patient advocacy (NOT AN ONLINE REVIEW) | Call a Virginia lawyer – like me, Lauren. |