Malpractice

Medical malpractice is a civil wrong describing a physician’s dereliction of duty directly leading to damage to a patient under the physician’s care. Although medical malpractice is not a crime, a tort claim (or civil wrong) can be made in a court of law when a patient suffers a poor outcome. Malpractice lawsuits can generally be avoided with excellent communication, demonstration of empathy, good medical practice, a good doctor-patient relationship, not cutting corners, and thorough documentation.

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Overview

Definition

Malpractice is a civil wrong describing a physician’s dereliction of duty directly leading to damage to a patient under the physician’s care.

  • Malpractice is not a crime: A crime requires “evil intent” (mens rea) and an “evil deed” (actus rea).
  • Malpractice is a tort: an act or omission giving rise to injury or harm to another amounting to a civil wrong for which courts impose liability
  • If a patient feels inadequate medical care was received, the patient can sue.

Types of malpractice

  • Intentional tort
  • Unintentional tort (negligence)

Components of a case for malpractice (“the 4 Ds”)

  1. Duty to the patient (established doctor-patient relationship): The doctor in question was in charge of the patient’s care.
  2. Deviation from the standard of care:
    • Standard of care: a defined set of best practices exercised by a reasonable physician with similar training and experience in a particular community
  3. Damage was suffered by the patient either physically or emotionally.
  4. Direct causation between the breach of duty and the poor outcome

Statistics

  • ⅓ of physicians will be sued for malpractice at least once. 
  • Surgeons and Ob-gyns are most likely to be sued for malpractice.
  • In 1 study, the following report being sued during their careers:
    • 85% of Ob-gyns
    • 83% of surgeons
    • 79% of orthopedic surgeons
  • Case outcomes:
    • 65% of cases drop or dismiss without going to trial
    • 25% of cases settle
    • 10% of cases go to trial
    • 80% of cases going to trial rule in favor of the physician

Consequences of malpractice

  • Significant personal stress
  • Damage to reputation and stigma
  • Punishment:
    • Compensatory: reimbursement paid to the patient for medical expenses, loss of salary, and physical suffering (may be as high as $1.5 million)
    • Punitive: punishment to the doctor for gross negligence or carelessness (e.g., prison time, suspension of medical license)

Professional liability insurance

  • Required for medical practice in almost every state in the United States and most medical systems
  • Covered errors typically include:
    • Misdiagnosis
    • Delayed diagnosis
    • Surgical errors
    • Birth injuries and obstetric trauma
    • Errors in prescription medication
    • Errors anesthesia administration
  • Medical malpractice does not cover:
    • Sexual misconduct
    • Criminal acts
    • Inappropriate alteration of medical records (fraud)
  • Covered costs:
    • Attorney’s fees
    • Court costs
    • Arbitration and settlement costs
    • Punitive and compensatory damages
    • Medical damages

Related videos

Advice to Avoid Malpractice Lawsuits

Above all else, a physician must practice clear and consistent communication to avoid getting sued.

Top advice

  • Clear communication
  • Show empathy.
  • Practice good medicine.
  • Maintain proper documentation.
  • Maintain proper professional boundaries.

Communicate clearly and show empathy

Clear communication with patients or surrogates, staff members, and colleagues.

  • Mistakes, errors, and bad outcomes need to be communicated with the patient and family quickly, clearly, and honestly; never try to “hide” mistakes. 
  • Always get informed consent.
  • Manage a patient’s expectations.
  • Proper signouts/handoffs to maintain good coverage on weekends, holidays, or nights 
  • The patient needs to believe the physician cares about the patient’s best interests.
  • Build functional, trusting relationships with patients.

Practice of good medicine

  • Continue to learn and stay up-to-date on standards of care in the specialty (e.g., continuing medical education).
  • Follow proper procedures and guidelines.
  • Think about the worst-case scenario and rule it out.
  • Avoid negligent prescription practices.
  • Never skip monitoring of vital signs.
  • Perform a proper physical examination of patients: If a patient or nurse reports an issue, go see the patient and evaluate personally.
  • Quickly respond to emergencies.
  • Follow up on ordered tests; do not let patients “fall off the radar.”
  • If a patient does not respond to treatment, give an alternative treatment or refer to a specialist.
  • Coordinate care of complicated patients by a single managing physician.
  • Ask for help (physicians do not know everything).

Maintain proper documentation and professional boundaries

  • Documentation should be complete and accurate for all encounters.
  • Cases with poor outcomes should have thorough and immediate documentation → “If it wasn’t documented, it wasn’t done.”
  • Document all interactions with patients and family members.
  • Proper documentation and boundaries are especially important in cases of patient noncompliance and informed dissent.
  • Do not use social media to communicate with patients.
  • Avoid relationships with patients outside the doctor-patient relationship.

References

  1. Legal Information Institute. Tort. Retrieved June 11, 2021, from https://www.law.cornell.edu/wex/tort
  2. Bono, M. J., Wermuth, H. R., & Hipskind, J. E. (2021). Medical malpractice. StatPearls. Treasure Island (FL): StatPearls Publishing. http://www.ncbi.nlm.nih.gov/books/NBK470573/ 
  3. Brendel, R. W., Wei, M. H., Schouten, R., & Edersheim, J. G. (2010). An approach to selected legal issues: confidentiality, mandatory reporting, abuse and neglect, informed consent, capacity decisions, boundary issues, and malpractice claims. The Medical clinics of North America, 94(6), 1229–ii. https://doi.org/10.1016/j.mcna.2010.08.003 
  4. Sadock, B. J., Sadock, V. A., & Ruiz, P. (2014). Kaplan and Sadock’s synopsis of psychiatry: Behavioral sciences/clinical psychiatry (11th ed.). Chapter 36, Forensic psychiatry and ethics in psychiatry. pages 1381–1399. Philadelphia, PA: Lippincott Williams and Wilkins.

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