Most physicians who come up against a medical malpractice lawsuit (and that's most American physicians) find themselves feeling like a fish out of water. Few really understand how the law defines medical malpractice or how the process of malpractice litigation works. In the hopes of beginning to clarify things, I recently published a post entitled “What is the ‘Standard of Care’?” (If you haven't read it, you might like to start there then come back.) Today, I want to go a step further and explore how the law defines “medical malpractice.” While the roots of the word “malpractice” suggest “wrong practice,” that's vague. As physicians, I hope we all agree that an adverse outcome does not necessarily imply that a patient received improper care. Does the legal system share that assumption? Let’s find out by asking: How does the law define medical malpractice?
What the Plaintiffs Must Show
To prove medical malpractice, the onus is upon the plaintiff and their attorney to prove four things:
Duty
Deviation
Direct Cause
Damages
Unless all four of these things are proven, the plaintiff has not met the legal standard of proof for medical malpractice.
1) Duty -- I: Physician-Patient Relationship
The first thing plaintiffs must demonstrate is that the defendant – let's use a physician for our purposes -- had a duty to provide care to the patient. In general, this means first proving that a doctor-patient relationship existed at all.
In some instances, this is simple. A patient walks into an office or an emergency department and I begin to provide care. A relationship has clearly been established.
In other instances, it may be foggier. Let’s say the patient has not been seen by a particular physician’s practice for six years. The patient calls the after-hours nurse with shortness of breath and is advised to call EMS. They choose not to do so, and things go badly. Does a relevant relationship now exist between the physician and that patient?
What about a patient and the radiologist who reads that patient's images? Or a physician covering a colleague’s practice and a patient whose abnormal lab result comes back while the colleague is away? What about the patient who signs out AMA?
No doubt, these gray zones contribute to the tendency of many plaintiff’s attorneys to name in a lawsuit “everyone whose name was on the patient’s chart.”
(Note: a recent ruling by the MN Supreme Court impacts on this question in that state. Click here for more on that ruling.)
Duty -- II: Standard of Care
Once it is firmly established that a physician had the duty to provide care to a given patient, the question becomes: What care was the physician duty-bound to provide? In other words, did the physician meet the standard of care? As I explained in a prior post, (CLICK HERE) the law defines the standard of care as “what a reasonable practitioner would do under the same or similar circumstances” and relies upon the testimony of outside experts to define that standard.
2) Deviation from the Standard of Care
It follows, then, that the second element required to prove that medical malpractice occurred is deviation from the standard of care. This deviation may come in the form of an error of commission or an error of omission. In other words, we may deviate from the standard of “what a reasonable practitioner would do under the same or similar circumstances” by having done something we shouldn’t, or by not having done something we should have. If there is no deviation from the standard of “what a reasonable practitioner would do under the same or similar circumstances,” regardless of the patient’s outcome, then according to the law, the defendant has not committed medical malpractice.
3) Direct Cause
Supposing that the plaintiff’s lawyer successfully comes thus far – proves that a relationship existed, demonstrates the standard of care, and proves that the defendant deviated from it -- what now? Have they proven that medical malpractice occurred? The law would say no. In order to prove medical malpractice, they must further show to a greater than 50% probability that the breach of the standard of care was the “proximate,” or direct, cause of the patient’s injury. That is to say that even if the standard of care is not met, if the breach did not cause the patient’s injury, then the law does not find that medical malpractice has occurred. An error might occur -- be it diagnostic or therapeutic -- but if it did not result in the injury for which the suit was filed, medical malpractice has not occurred, according to the law.
4) Damages
Finally, there is the question of damages. If a deviation from the standard of “what a reasonable practitioner would do under the same or similar circumstances” is demonstrated, and that deviation is convincingly shown to be the cause of an injury to the patient, the plaintiff will next need to elaborate the specific damages for which compensation is sought. These may include things like injury or death, pain and suffering, past medical expenses, and future medical or other expenses resulting from the injury.
Crucially, if there are no substantial damages, and therefore no basis for compensation, plaintiff's attorneys will not file a lawsuit. From my perspective, it's equally or more crucial that you grasp this: even if a patient experiences a tragic outcome in the course of receiving medical care, if you have done what a reasonable practitioner would do under the same or similar circumstances, as far as the law is concerned, you have done all right. You may feel crushed by your patient's outcome, and you may struggle as many physicians do not to hold yourself to an inhumanly high standard, but according to the law's definition, you have not committed “medical malpractice.” And that is so whether or not your particular legal process “gets it right” or not. Rather, I would say that you have simply practiced real live medicine.
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