Medical Malpractice Liability

Introduction

Medical malpractice cases arise when a physician or other health care professional provides unskilled or negligent treatment that injures a patient. If a doctor, nurse, technician, or other health care provider does not meet a reasonable standard of care, he or she may have committed malpractice. If a malpractice suit arises, the health care professionals named as defendants should seek legal counsel at once. An attorney experienced in medical malpractice defense can advise them on how to proceed, inform them of what defenses may be available, and zealously represent them throughout the entire litigation process.

Elements of a Medical Malpractice Claim

A plaintiff in a medical malpractice case must establish the same four elements as are required in nearly every professional malpractice case: duty, breach, injury, and proximate cause. In order to establish the duty element, the plaintiff must prove that a doctor-patient relationship existed. A doctor-patient relationship is usually formed by agreement between the doctor and the patient. If there is no such agreement, doctors usually have no obligation to provide treatment. For instance, if a doctor is shopping at the local mall and sees another mall patron who appears to have fainted, the doctor may have no obligation to render medical aid. In other situations, however, such as when the doctor is an emergency room physician, the doctor may be required to treat any person who comes into the emergency room with a life-threatening condition, no matter how "undesirable" the patient may be.

If a doctor does choose to render emergency care, such as to a motor-vehicle accident victim he or she passes on the highway, the physician may be protected from malpractice claims by various state statutes called "Good Samaritan" laws. These laws usually insulate a doctor from liability for rendering emergency medical care outside of a doctor's office, hospital, or other medical facility. In these cases, the doctor generally had no duty to the victim but rather volunteered in good faith to help without being paid. A doctor can still be sued for gross or severe negligence, however, even in Good Samaritan situations. In some jurisdictions there is a legal requirement that, once aid is rendered, it is rendered in a non-negligent manner; in other words, even in emergency situations, and even when the doctor is working for free, he or she must exercise the same degree of care as in a normal setting, subject to the limitations of the emergency situation.

Once a doctor-patient relationship is established, the doctor has a duty to provide good care. Expert testimony from another health care professional is usually necessary to prove the requisite standard of care. Previously, the necessary standard of care was measured by the customary practice in a particular locality. However, most states have modified the locality rule such that now, as the practice of medicine has become increasingly uniform and national in scope, the standard of practice in the same or a similar locality is considered in combination with the state of development of medical science at the time of the incident. Specialists in a medical field, like dermatologists or heart surgeons, are held to higher standards than the standards to which general practitioners are held. In addition, any doctor performing procedures usually done only by a specialist will be held to the level of performance required of that specialty.

Generally speaking, a health care professional breaches his or her duty to a patient if he or she fails to use the same level of care another reasonably competent professional would use in similar circumstances. Breach can be difficult to prove because competent physicians may disagree on the best course of treatment for the same patient. Medicine is an inexact science. Even if Doctor A would have recommended surgery and Doctor B chose to treat the patient with medicine, there may have been no malpractice if either option was an acceptable choice. If, however, the patient's appendix was about to rupture, for example, and Doctor A rejected the surgical option, the malpractice would be quite evident.

Unlike breach of duty, which is hard to establish, injury is fairly easy to prove in a medical malpractice case. If a patient dies or is left with chronic illness or pain as a result of a health care professional's actions, an injury is established. Proximate cause, however, the final element, is another tough one, because a bad result does not necessarily point to malpractice. Even with the best treatment, a patient may die or not fully recover. Additionally, a doctor may have made a mistake, but the resulting damages may be so far removed in the chain of events from that mistake that no liability should attach to the doctor's conduct. Say, for example, a plastic surgeon performs a face-lift that could have been done more skillfully and, as a result, the patient and her husband are disappointed. If the patient's husband ultimately leaves her for a younger woman and the patient gets little property in the divorce settlement, she cannot go back to the plastic surgeon and claim that her dire financial straits are the result of his malpractice and that he must financially compensate her.

Informed Consent

A medical professional may also face liability in a medical malpractice suit for failing to obtain a patient's informed consent. Informed consent means that the doctor or other health care provider has explained the treatment or procedure that will be performed to the patient, the risks of that treatment or procedure, the risks of refusing the treatment or procedure, and any alternatives to the treatment or procedure, and that after considering all of that information, the patient agrees to the prescribed course of action. Consent may be oral or written, or it may be implied if the patient's conduct indicates a willingness to undergo the treatment or if the patient is unconscious and there is no family member available to provide consent in a timely manner. Some health care providers use standard forms that their patients must sign, indicating that they have been given the required information and consent to treatment. Patients should not sign these forms unless they have in fact been fully informed and agree with the prescribed therapy.

If the patient is a minor, a parent or guardian must consent to the child's treatment unless an emergency situation makes time of the essence and a parent is unavailable. Also, if a minor seeks treatment for a sexually transmitted disease, alcohol or drug treatment, or an abortion, the parent or guardian's consent may not be required. However, some states do require parental consent in order for a girl under eighteen years old to have an abortion. If a health care provider fails to obtain the patient's, a parent's or guardian's consent and provides treatment nonetheless, the patient may be able to sue to recover damages.

Damages

A health care provider that has committed medical malpractice may be liable for both actual and punitive damages. Actual damages consist of any additional medical expenses the patient incurred as a result of the malpractice, any future medical expenses necessitated by the malpractice, lost earnings, future lost earnings, and damages for pain and suffering. Punitive damages are not intended to compensate the victim for actual losses, but are awarded to punish a defendant whose conduct has been intentional, willful, or reckless, rather than merely negligent. Punitive damages are in some cases much greater than actual damages, particularly when the defendant's breach of duty is especially egregious and the plaintiff's harm is very serious.

In cases in which the plaintiff is able to prove that the doctor or other health care provider failed to obtain informed consent for the treatment, the plaintiff may be able to recover even if the treatment was successful. In addition, on rare occasion, a plaintiff may be able to prove that the doctor promised a certain result if the patient underwent medical treatment or a procedure, and that the promised result was not obtained. In such cases, the plaintiff may be able to recover the value attributed to the loss of the successful treatment.

In some states, the legislatures have enacted statutes that put a limit on the amount of damages that can be recovered in medical malpractice cases. Plaintiffs in such states have argued, with limited success, that those statutes are unconstitutional.

Defenses

A defendant in a medical malpractice action may admit that there was some negligence, but argue that other factors excuse his or her conduct. Perhaps the most frequently asserted defense is consent, which means that the physician or other health care professional told the plaintiff about all of the risks associated with a particular treatment and the plaintiff agreed to that treatment, fully aware that the outcome that was experienced and is complained about was a possibility.

Often doctors and hospitals will attempt to prove that the patient consented to the treatment, with its known risks, by showing that the patient signed a standard consent form. These forms often include language warning patients that medicine is an inexact science and that the patient must assume all risks of the procedure or treatment. Even if the patient has signed such a form however, he or she still retains the right to sue if the doctor has not actually fully informed the patient about the risks of or alternatives to the treatment, has gone beyond the agreed-upon procedure, or fails to adhere to the recognized standard of care. A patient can also sue a hospital or doctor if someone other than the health care professional named on the consent form performs the procedure.

Another affirmative defense raised in medical malpractice cases is conflicting legal duty. This defense applies in cases involving a breach of the doctor's duty to maintain client confidentiality. Although a doctor is ordinarily liable for such a breach, there is no liability if the doctor's disclosure was mandated by law. Doctors and other health care workers are required to report cases involving gun shot wounds, communicable diseases, and known or suspected child or vulnerable adult abuse. In those cases, there is no breach of duty, and thus no malpractice, as a result of the disclosure.

In most cases, however, the health care professional will not admit negligence, and will instead argue that his or her conduct met the applicable standard of care.

Conclusion

Medical malpractice cases are serious business. When a health care professional becomes the subject of malpractice allegations, his or her first step should be to seek experienced legal counsel. A seasoned medical malpractice defense attorney can advise a defendant on whether a claim is valid, inform him or her about available defenses, and provide ardent representation throughout the process in order to minimize damages if in fact malpractice is found to have occurred. Perhaps more importantly, however, a good malpractice attorney can work proactively with health care professionals and advise them on the best course of conduct to avoid malpractice claims in the first place.

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