Medical Negligence

Medical negligence is the act or omission in treatment of a patient by a medical professional, which deviates from the accepted medical standard of care.

Medical negligence is often confused for medical malpractice, when in fact, negligence is only one aspect of a meritorious medical malpractice claim.

In terms of medical malpractice tort law, medical negligence is usually the basis for a lawsuit demanding compensation for an injury caused a patient by a doctor or other medical professional. While negligence on it's own does not merit a medical malpractice claim,

Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a way that deviates from the accepted medical standard of care.

If a doctor breaks the rules regarding how to treat a patient, and does something that is "against the rules", then that doctor has failed to perform is duty, and is said to be negligent.

Types and Examples of Medical NegligenceMedical negligence can occur in an infinite number of ways, but many instances of medical negligence can be grouped into one of the following categories:

MisdiagnosisFailure to Timely DiagnoseSurgical ErrorFailure to Follow Up with Treatment

Failure to Treat in a Timely Manner

Anesthesia ErrorMedication or Prescription Error

Tort LawTort = a civil wrong

Sometimes also considered crimes (intent)Governed by state law, common law doctrines

Designed to prevent harm or compensate for harm to a person

Primary aim = to provide relief through compensation to injured parties for the damages incurred

Medical MalpracticeProfessional liability for personal injuryWhen physician agrees to diagnose & treat a

patient, assumes a duty of care toward that patient

Medical Negligence: failure to meet that duty of careTo provide the standard of care

May include criminal negligence, malicious intent, or strict liability

May also be subject to disciplinary sanctionsBy State Medical Boards

Elements of a Cause of Action in Negligence (Malpractice)1. Duty of Care2. Negligent Breach of Duty3. Causation4. Damages

DutyWhat is the legal relationship between the

defendant and plaintiff that will support a tort claim?

Treating PhysiciansIf the doc lays hands on the patient, is

there a duty?Can this duty be terminated?When is a patient abandoned?

How broad is the duty?Is a specialist consultant responsible for

the patient's entire condition or can she rely on the primary physician?

What if you only talk on the phone?

Limited EngagementsOccupational medicine

What is the duty of physicians who do physicals, examinations, and limited treatment for occupational injuries and licensure?

What about ambulatory care centers?Does the doc you consult for a limited purpose

have a duty to inquire into other health issues?What if they notice something beyond their

engagement?

Invisible PhysiciansWhat about radiologists and pathologists who

never see the patient, but read tests that affect patient care?

Consultants who do not examine the patientPhysicians who review or supervise the care

of other physicians in training programsPhysicians who are the legal supervisors of

paramedical personnel

1. Standard of CareWhat is the applicable standard of care in

medical malpractice cases?Professionals are held to a standard of care,

judged by:Professional Standard: a reasonable & prudent

physician of ordinary skill (majority of states) MI: “minimum acceptable standard of care”

Reasonable Patient Standard: what a reasonable patient in similar situation would expect

Individual Patient Standard: what this patient expectsUsually determined by court using expert

testimony

2. Breach of DutyWas there a breach of this standard of care?Negligent breach of the standard of careNegligence can occur at different stages:

MisdiagnosisFailure to properly treatAdministering wrong medicationFailure of informed consent

Failure to inform patient about risks, alternative treatments, e.g.

Negligence is usually established by expert witnesses

BREACH OF DUTY 2The Bolam Test/Defence“A doctor is not guilty of negligence if he

acted in accordance with a practice accepted as proper by a responsible body of medical opinion….A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view”

Later applicationsWhitehouse v Jordan 1980Maynard v West Midlands RHA 1984 “I have to say that a judge’s preference for one

body of distinguished opinion over another also professionally distinguished is not sufficient to establish negligence”

Criticisms of Bolam TestToo protective of doctors Judges not permitted to choose between

competing expert views “Responsible body” not definedA sociological rather then a normative

framework

3. CausationOnce it has been shown that a physician

(hospital, other professional) has been negligent

Plaintiff must prove that this negligence caused (or worsened) the harm/injury

The negligent act must be directly responsible for the harm (proximate cause) or at least have contributed to it (cause-in-fact)

4. DamagesIf plaintiff establishes negligence & liability, they

are entitled to damages (financial compensation) for:Compensatory damages: Past/future medical bills, lost

wagesNon-economic Damages: Pain & Suffering

Capped (1994) in MI: $280,000 Except for paralysis, cognitive impairment or loss of reproductive

capacities = $500,000Attorney Fees

MI: In personal injury & wrongful death cases = limited to 1/3 of award to plaintiff

Damages reduced byContributory negligence (of plaintiff) Joint and Several liability (of other parties)

Avoiding Inappropriate Defensive Practice1. Make a clinically sound treatment decision.2. Accurately identify the legal risk in the

case.3. Evaluate the risk by estimating potential

costs of the claim in time, anxiety, money.4. Discount that risk calculation by the

unlikelihood of its occurrence and the potential claim’s defensibility.

5. Evaluate that cost to the patient and society of potential defensive measures.Deville, supra, at 582.

Approaches to Disclosing Error in Practice.

Report/Resolve conflicts as “close to the bedside” as possible.

Keep accurate, contemporaneous records of all clinical activities.

Notify insurer and seek assistance from others who can help (e.g., risk manager).

Take the lead in disclosure; don’t wait for patient to ask.

Outline a plan of care to rectify the harm and prevent recurrence.

Offer to get prompt second opinions where appropriate.

. . . in PracticeOffer the option of family meetings, get

professional help to conduct them.Offer the option of follow-up meetings.Document important discussions.Be prepared for strong emotions.Accept responsibility for outcomes, but avoid

attribution of blame.Apologies and expressions of sorrow are

appropriate.

Cf., Hebert, et al., supra, CMAJ 2001:164(4);509

Following are the most common medico-legal issues faced by doctors and health care personells.

Medical-Legal Issues Consent Advanced Directives (Living Wills) Blood Samples or Toxic Substance Screens Uttering Threats Reporting Duties Child Abuse Spouse / Elser Abuse Sexual Abuse by a Regulated Health Professional OHIP Fraud Medically Unfit to Operate a Motor Vehicle

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