Medical Negligence

The foundation of a successful claim of malpractice against a doctor is an establishment that his care was “negligent,” but to succeed in a claim it is necessary to establish a chain of circumstances, known as elements: that there was a duty owed, that the duty was breached, that an injury was sustained as a result of this breach, and that as a result of the injury there was a loss. Should any one link fail, then the chain fails.

Duty of Care

This will be the relationship between the patient on one side, the plaintiff, and a person or institution on the other side, the defendant.  It may be that the patient is aggravated that a particular person or institution did not meet his expectations or demands, but it must be shown that the person or institution involved had either accepted to care for that patient or had some legal requirement that they should.

In the case of a surgeon, he has contracted to perform an operation, in the case of a physical therapist she has contracted to supervise an exercise program; in the case of a hospital they have a legal obligation to provide needed care in the emergency department.

Once the duty of care is established, move on to the next element. If, however, there was no duty of care, then there may be no support for a claim of negligence.

Breach of Duty

A failure of a medical practitioner or medical institution to perform the task expected may be quite obvious, or it may be disputed. Case law applied to the dispute may excuse the defendant on the grounds that although hindsight is 20/20, the issue at litigation could not have been foreseen.

Causation

The breach of duty must be responsible – the cause – of the injury. There may arise an issue in determining how close in time or in sequence was the physician’s action to the injury sustained. Case law puts limits on proximate cause requiring an obvious and not devious connection, expressed as, “liability in an indeterminate amount for an indeterminate time to an indeterminate class.” Whether causation is proven may determine if the claim proceeds.

            What Defines an Injury?

This may be physical, loss of vision, loss of a leg, etc.

Or it may be economic, loss of time from work, an inability to continue at previous employment. Or it may be both physical and economic.

Or it may be emotional, possibly the development of a recognized psychiatric state such as severe depression or a post-traumatic stress disorder; possibly grief for self.

Or it may be brought by a close relative or estate on the grounds of loss of companionship and guidance.

Different jurisdictions have differing rules on what constitutes a loss, but all are likely to require proof of a loss before a claim of malpractice is proven.

           
Damages

If the preceding links have been satisfied, damages may be assessed on the basis of:

special damages: losses actually sustained or expenses incurred

general damages: “pain and suffering” is the usual expression

punitive damages: jurisdictions differ in whether they permit juries to order “punishment” awards, and not infrequently they are severely reduced or overturned on appeal. They do offer an outlet for community anger, even if not sustained on appeal.

Expert Opinion

Where technical issues are involved the court may rely on the opinion of experts. In medical practice an expert is generally accepted if he is a certified specialist in the field, and if he has particular knowledge of the area of the specialty relevant to the case. An orthopaedic surgeon might be Board Certified as an expert, but if the case involves the treatment of a club foot in a child and he has no pediatric experience in the last 40 years, the lawyer would have been better advised to find a surgeon who practised in that section of the specialty. In court he will be expected to talk from his own experience and not from what he read in a book.

Each side is likely to produce a witness, or several witnesses, to support their case, their explanations are often too technical for juries or judges to understand and all too often the jury makes the decision on, “which of these experts would I want to be my doctor?”

Malpractice Risk

There is all the difference in the world between a suit brought against a doctor and a conclusion he was negligent and guilty of professional malpractice. Unfortunately, many cases are brought in the expectation they will be settled out of court rather than go to the expense of defending them – the so-called “nuisance cases.”

In a study published 2011 malpractice cases between 1995 and 2005 were analyzed. It was found that each year 7.4% of all physicians had claims made against them, of these claims 78% did not succeed in getting damages. However, it was estimated that by retirement age of 65, of the surgeons in the high risk specialties (neuro, thoracic, orthopaedic and general) 99% had been sued.