Chapter 9: A Primer on Medical Malpractice

Malpractice – What is it?

• Error - behavioral matter• Misperception• Mistake• Omission• Substitution

• Accident - unplanned event

• Malpractice - negligence

Negligence

• An act that a prudent person would not have done or the omission of a duty that a prudent person would have fulfilled, resulting in injury or harm to another person.

– A civil wrong and part of the law of torts.

– Founded on the relationship between the actor and the victim

Requirements of an Act of Negligence

• Legally recognized relationship between the health care worker and patient

• Health care worker has a duty of care to the patient

• Health care worker breached the duty of care by failing to conform to the required standards of care

• The breach of duty was the direct cause of harm, resulting in the patient suffering damages as a result of the harm

Malpractice

• Negligence that is the proximate cause of injury or harm to a patient resulting from

– A lack of professional knowledge, experience or skill that can be expected in others in the profession.

OR

– From failure to exercise reasonable care or judgment in the application of professional knowledge, experience or skill.

Medical Malpractice

• The commission or omission of an action causing an injury is shown to arise from the exercise of professional medical judgment

• There must be:

– A Physician-Patient Relationship

– A Duty to Perform Professionally

Sources of Professional Standards

• Government statutes and regulations

• Professional society standards

• Voluntary accrediting agency standards

• Administrative policies and rule of the facility

Theories of Liability

• Informed consent

• Strict liability

• Vicarious liability

• Res ipsa loquitur

Re ipsa loquitur

The thing speaks for itself

– Injury would not ordinarily occur in the absence of negligence

– Injury was caused by the actions was within the control of the defendant

– Injury is not due to any action on the part of the plaintiff

– Evidence surrounding the circumstances is mostly within the control of the defendant

Hospital Liability for Malpractice

• Respondeat superior

• Ostensible agency

• Staff Privileges

– Corporate Negligence

– Contributory Negligence

Other Liability Theories

• Intentional tort

• Assault and battery

• Libel

• Slander

• Invasion of Privacy

Types of Damages

• Compensatory damage

• Awards for pain and suffering

• Punitive damages

Statute of Limitations

• The maximum period of time after the patient’s injury during which a lawsuit may be commenced.

• Most state have a statutory period between one and three years.

• Typically the statutory period is deferred (tolled) during infancy and starts to run only on the patient’s 18th birthday.

Common Malpractice Allegations

• Surgery/post-op complications

• Failure to diagnose cancer

• Surgery/inadvertent act

• Improper treatment (birth related)

• Failure to diagnose fracture or dislocation

Most Expensive Settlements

• Improper treatment (birth related)

• Failure to diagnose hemorrhage

• Failure to diagnose myocardial infarction

• Failure to diagnose infection

• Failure to diagnose cancer

Other concerns which may impact liability

• Unrealistic patient expectations

• Non response to complaints

• Illegible medical records

• Insufficient information in medical records

• No follow-up on abnormal tests

• Professional miscommunication

Summary

• Risk Managers need to be aware of both professional and facility liabilities

• Malpractice claims can be very complex

• Setting policies and procedures and following them are important in minimizing malpractice liability