Curb Your Enthusiasm

 The other night, I was watching an old “Curb Your Enthusiasm” episode on DVD. The episode was a typical half hour of misunderstandings and wild coincidences. Larry’s friend and business agent, Jeff is in the hospital for some surgery to correct his snoring. For several funny reasons I won’t go into here, Larry inadvertently infuriates Jeff’s doctor who then goes to the operating room and shaves Jeff’s head. Jeff then wakes up bald and fails to close a million dollar deal with Ben Stiller. Jeff is convinced that the reason he lost the deal was because he was bald. He shouts to Larry “I’ll sue!”

So that got me thinking. Is this a real case? Is it medical malpractice? What would I do if Jeff walked into my office? Could this be one of those urban legend “frivolous lawsuits?”

First, is this even a medical malpractice case? Shaving somebody’s head doesn’t sound like a medical case and isn’t even negligence if the doctor did it intentionally. However, because shaving is a normal part of some surgeries (but not a snoring surgery) it would be a “medical treatment” and therefore would fall under medical malpractice law.

Now that we know its medical malpractice, we have to see if there is a breach of the standard of care. It would seem obvious that shaving somebody’s head that had nothing to do with the actual surgery and maybe it is. Nevertheless, under North Carolina law, an expert doctor has to give that opinion, even before any lawsuit is filed. That expert has to be in the same or similar specialty and be familiar with the community or a similar sized community.

Contrast that requirement with a normal lawsuit. If Jeff had fallen asleep in a barber chair who had then shaved his head, he could file a lawsuit the next day and argue to a jury that this was not with his permission or not what a reasonable person would do. No need to get an expert barber to testify.

Assuming we have retained an expert doctor to review the medical records and solemnly pronounce a breach of the standard of care that caused the damage (baldness) the real question is one of damages. Unless Ben Stiller will admit that he didn’t hire Jeff because he was bald, the damages will be limited to a few weeks of embarrassment and baldness, and probably the extra medical bills that Jeff had to pay for the failed operation. This is one more factor against medical malpractice. Again if this was ordinary negligence of a barber, just these damages may be worth a lawsuit. But, with the cost of medical experts, I don’t see a jury giving Jeff enough money to make a medical malpractice case worthwhile. I never want to take a case where it costs my client more than what he could win.

As silly as this is, it does show one of the biggest limitations of medical malpractice cases and why cries for tort reform from medical malpractice insurance companies are overblown. Medical mistakes happen all the time, but unless there is serious and permanent injury, lawsuits are simply too expensive to be used to rectify medical negligence.

–Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.