Medical Malpractice

September 17, 2011

There are many forms of legal regulation of medical practice and its practitioners. Among other legal mechanisms, there are state professional licensing and disciplinary statutes and regulations, mandatory oversight by peer review organizations, federal and state parameters on drug and device prescribing, and financial and quality of care audits by public and private third-party payers. Statutory and regulatory requirements for hospitals and other health care provider institutions and agencies also exert a direct impact on medical practice. One of the most significant mechanisms for regulating physician behavior in the united States is the private civil tort system that encompasses individual professional liability/medical malpractice lawsuits brought by, or on behalf of, patients against their professional caregivers.

A relatively small number of medical malpractice claims are predicated on a theory of violation of contract. in such litigation, the patient/plaintiff claims that an express promise made by the physician about the outcome (for instance, “After this plastic surgery, I guarantee that you will look twenty years younger than before”) has not been fulfilled.

The overwhelming majority of malpractice actions, though, are based instead on a theory of tort, which means a civil wrong (as contrasted with a crime) caused by the violation of a duty stemming from something other than a contract. Within the relationship between a patient and physician, a tort is committed by a violation of the physician’s fiduciary or trust obligation to act always in the patient’s best interests.

A small percentage of the tort actions brought against physicians allege intentional wrongdoing, such as battery, for physically invading the patient’s bodily integrity by doing some procedure without appropriate permission. However, the majority of malpractice cases are founded on a theory of negligence, or unintentional (albeit blameworthy) deviation from accepted professional standards. Medical negligence may occur through the failure to supply the individual (or the proxy decision-maker for a decisionally incapable person) with the information necessary to give a truly informed, voluntary consent to a particular intervention. Negligence also may take place through poor-quality, professionally unacceptable rendition of patient care. Many plaintiffs’ complaints in professional liability cases allege both lack of adequate informed consent and the substandard performance of medical services.

In any negligence action, the plaintiff who initiates the claim must prove the presence of four elements in order to establish a prima facie case and succeed. The plaintiff’s inability to meet the burden of proof—convincing the jury by a preponderance of the evidence—regarding any of these elements warrants dismissal of the case.

First, the plaintiff must show that the professional owed the plaintiff a duty of due care; this responsibility is established by virtue of the existence of a professional/patient relationship. The duty or standard of care owed is that degree of knowledge or skill that would be possessed and practiced by competent, prudent professional peers under similar circumstances. Second, because the present American malpractice system is based on the concept of fault, the plaintiff must show that the physician violated or breached the acceptable standard of care. The law does not require absolute perfection in medical diagnosis and treatment. By the same token, it is not enough for physicians to “do their best” if their conduct does not rise to the applicable level of care under the circumstances.

The third thing that a successful malpractice plaintiff must establish is that physical, financial, and/or emotional injury or damage was suffered. One main purpose of awarding monetary damages in a tort action is to attempt to make the injured victim “whole” again, or returned to the position or condition that existed prior to the negligence, even while recognizing that the ability of money to accomplish that objective very often is a legal fiction.

Finally, proving the element of causation is essential. Specifically, the plaintiff must convince the jury, to a reasonable degree of medical certainty, that the injury incurred was directly or proximately brought about by the defendant’s violation of duty, that is, that “but for” (sine qua non) the defendant’s negligence, the injury would not have happened and, furthermore, that there were no other intervening, superceding, unforeseeable factors that would explain the injury.

In many medical malpractice cases, the physician is not the only party named by the patient/plaintiff as a defendant. Depending on the specific facts, the health care institution or agency that employs the physician, or with whom the physician is affiliated, may be subject to lawsuit in addition to or in place of the physician. Health care institutions and agencies might be held liable, solely or jointly, for malpractice under theories of vicarious liability for employing (respondeat superior) the physician or negligently supervising her, or direct liability for the failure to adequately fulfill their own independent fiduciary responsibilities toward the patient.

SEE ALSO: Informed consent, Physicians

Suggested Reading

  • Bell, P. A., & O’Connell, J. (1997). Accidental justice: The dilemmas of tort law. New Haven, CT: Yale University Press.
  • Boumil, M. M., & Elias, C. E. (1995). The law of medical liability in a nutshell. St. Paul, MN: West.
  • Danzon, P. M. (1985). Medical malpractice: Theory, evidence, and public policy. Cambridge, MA: Harvard University Press.
  • Kapp, M. B. (1990). The American medical malpractice system: Impediments to effective change. International Journal of Risk and Safety in Medicine, 1, 239—254.
  • Law, S. A., & Polan, S. (1978). Pain and profit: The politics of malpractice. New York: Harper & Row.
  • McClellan, F. (1994). Medical malpractice: Law, tactics, and ethics. Philadelphia: Temple University Press.

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