Malpractice

The practice of medicine centers on a physician making a judgment given the many similar patients in the past. Medical malpractice is neither failure to make a proper diagnosis nor even failure to provide curative treatment. Medical malpractice is professional negligence. Professional negligence is the failure to use reasonable care in providing medical treatment, resulting in harm to the patient. The distinction is important, in that some patients will have undesirable outcomes despite proper diagnosis and care (for example, massive trauma, cardiac arrest, and so on), but such sad and unfortunate results do not constitute malpractice. It is only when the physician or other medical professional deviates from the usual, widespread, generally perceived standard of care and the patient is harmed by that departure that malpractice occurs.

Despite the preceding definition of malpractice, the number of medical malpractice lawsuits and the size of dollar awards granted to patient plaintiffs have risen dramatically in recent years. The recent increased frequency and size of malpractice cases has a variety of causes. These include (a) a general public perception that medicine is, in fact, very good in the United States and therefore bad outcomes are not expected; (b) health care is very expensive and the system is often difficult to “navigate” for the patient, so emotions are often high, especially in critical cases; (c) plaintiff attorneys are increasingly adept in handling these cases; (d) an increasing number of physicians are actively working as “expert witnesses” to assist those attorneys; (e) juries in all types of cases have begun to award astronomical awards to plaintiffs through punitive damages in an attempt to provide some relief for plaintiffs in dire straits (for example, the recent multibillion-dollar tobacco settlement); and (f) a perception by juries that “it' just the insurance company' money anyway.”

In any potential malpractice case, however, a high burden is placed on the patient plaintiff and his or her attorney. It has been said that anyone can sue over anything in this country but to be successful in a typical medical malpractice case, the attorney must convince the jury that the following existed or occurred:

• There was a doctor–patient relationship.
• There was deviation from the standard of care (that is, negligence).
• The patient suffered harm or damages.
• The actions of the physician caused the harm or damages.

Each of these elements must be proven in a medical malpractice case, to the satisfaction of a jury.

The first element listed, the existence of a doctor–patient relationship, seems obvious but it isn't always so. For instance, a physician who is asked by another physician to see a patient in consultation but who has not yet done so, does not have an established doctor–patient relationship, nor does a physician who happens to be in the hospital when a cardiac arrest announcement is made over the hospital intercom (usually in some cryptic language), if those physicians have not been involved in the care of the patient. In reality, although it is not unheard of for such physicians to originally be named in a malpractice case, the existence of a doctor–patient relationship is usually clear-cut and few cases proceed without such obvious facts.

...