MD News: How Neurological Claims May Arise Directly and Indirectly in Medical Malpractice Cases

MD News: How Neurological Claims May Arise Directly and Indirectly in Medical Malpractice Cases

By William P. Brady, Esq. and Michelle A. Frankel, Esq.

Medical malpractice lawsuits may involve many types of neurological claims. Patients and their representatives may assert claims directly against neurologists and/or neurosurgeons who provide care and treatment for diseases of the brain, spinal cord, peripheral nerves and muscles. They may claim, for example, that there was a failure to diagnose, monitor and/or properly treat an array of neurological conditions. They may claim that neurological injuries were caused by medication or diagnostic errors, the negligent performance of a procedure, and/or untimely treatment. The defense of medical providers depends on the specific facts and medical issues, but some common considerations and actions may prevent injury altogether, ideally, or create a stronger litigation defense.

When considering the diagnosis and treatment of strokes, brain aneurysms and/or subdural hemorrhages, for example, the provider must thoroughly assess a patient’s medical history, complaints, symptoms and/or radiology imaging. All information must be well documented and critically examined to determine appropriate treatment recommendations. Physicians must consider differential diagnoses, since symptoms such as dizziness, vomiting, nausea and headaches may be associated with less serious conditions. Such symptoms may alternatively be signs of more serious conditions, such as a hemorrhage, especially if the patient suffered trauma. Thus, medical providers must know what to ask patients and when to pursue radiology and/or consultations. The timing of consultations and/or radiology and related recommendations can be critical to prevent death or mitigate permanent injury. A physician of the appropriate specialty must determine and carefully document if and when it is appropriate to monitor a patient and assess for changes in his/her symptoms rather than perform emergent surgery (such as the placement of burr holes and/or performance of a craniotomy).

Conditions such as epilepsy, neuropathy, Parkinson’s disease and Alzheimer’s disease may lead to other claims. Medical providers may need to be particularly cognizant of patients’ day-to-day needs and changes in their condition if they suffer from long-term neurological illnesses. Providers must recognize and explain if the patient has a heightened fall risk. If the patient needs additional home or long-term care, or if such care is recommended and declined, the physician should carefully document why it was recommended and what risks and benefits were explained. Medical providers may need to consult with pharmacologists or other specialists to determine if a patient’s symptoms and/or changes in condition are caused by medication side effects or symptoms of an underlying illness itself.

Neurological claims against various medical specialties may be asserted as injuries suffered as a result of a medical provider’s alleged negligence. Patients may claim that cardiac, bariatric or orthopedic surgery was negligently performed and caused the patient to have lingering numbness or pain. Defense litigators must collaborate with medical experts to decipher whether there was a deviation from accepted standards of care that caused the injury (e.g., numbness or pain) or to determine if the injury was an unfortunate consequence of the (potentially lifesaving) intervention that was properly performed. There may be liability if there was a deviation but only if there is causation, too. Some neurological injuries may develop contemporaneously and others may develop months or years later. This is taken into consideration when evaluating the legitimacy or value of a medical malpractice case. For example, if an infant is injured during birth, the severity and permanency of the injury may not be known until the child develops and related information may change the case value. Physical patient examinations may be critical to understanding the injuries, too.

These are some ways that neurological claims may be asserted against varied specialties. All claims will require an assessment of whether the medical provider complied with accepted standards of care, so it is critical to remain up to date with current standards and to inquire with specialized medical malpractice counsel if questions arise.

Partner William P. Brady and Associate Michelle A. Frankel are attorneys at Martin Clearwater & Bell LLP, where they focus their practice on the defense of medical malpractice matters. For more information, visit

Source: MD News July 2021, Long Island Edition