Malpractice

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 reus).
  • Rarely, egregious conduct (e.g., gross negligence, practicing while impaired) may also be prosecuted criminally.
• 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 Medical care Conflict of Interest was received, the patient can sue, although a claim only succeeds if all 4 elements below are proven.

Types of malpractice

• Intentional tort
• Unintentional tort (negligence): the basis of the great majority of malpractice claims

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 under similar circumstances (most US jurisdictions now apply a national standard rather than the older “same community”/locality rule)
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 Physicians Individuals licensed to practice medicine. Clinician–Patient Relationship will be sued for malpractice at least once. 
• Surgeons and Ob-gyns are most likely to be sued for malpractice.
• In AMA AMA Primary Biliary Cholangitis survey data, the proportion ever sued during their careers was:
  • 60% of Ob-gyns
  • 53% of general surgeons
  • 50% of orthopedic surgeons
• By age 65, an estimated 99% of physicians Physicians Individuals licensed to practice medicine. Clinician–Patient Relationship in high-risk specialties and 75% in low-risk specialties have faced at least 1 claim.
• Case outcomes:
  • 65% of cases are dropped, dismissed, or withdrawn without going to trial
  • ~29% of cases settle or are resolved by alternative dispute resolution
  • ~6% of cases are decided by a trial verdict
  • ~89% of cases decided by a trial verdict rule in favor of the physician

Consequences of malpractice

• Significant personal stress
• Damage to reputation and stigma
• Damages awarded:
  • Compensatory: reimbursement paid to the patient for economic losses (medical expenses, loss of salary) and noneconomic losses ( pain Pain An unpleasant sensation induced by noxious stimuli which are detected by nerve endings of nociceptive neurons. Pain: Types and Pathways, suffering); amounts vary widely, and many states cap noneconomic damages (commonly $250,000–$750,000)
  • Punitive: additional monetary award imposed for gross negligence, recklessness, or willful misconduct; punitive damages are rarely awarded in malpractice cases.
• Criminal penalties (e.g., prison time) and licensure actions (e.g., suspension of medical license by the state medical board) are separate processes and are not part of a civil malpractice verdict.

Professional liability insurance

• Nearly all hospitals, health systems Health systems The complexity of health systems and the delivery of healthcare has resulted in the growing field of health systems science, which has now joined basic and clinical sciences as the 3rd pillar of medical education. Health systems science allows for an understanding of the framework in which care providers practice, and in comprehension of the interconnected components of care delivery. Healthcare System, and payers require coverage for employment, credentialing, and privileges.
• Legally mandated in only a minority of US states (e.g., Colorado, Connecticut, Kansas, Massachusetts, New Jersey, Rhode Island, Wisconsin), and required in other states only for participation in patient compensation Compensation Respiratory Acidosis funds or specific practice settings.
• Covered errors typically include:
  • Misdiagnosis
  • Delayed diagnosis
  • Surgical errors Surgical Errors Disclosure of Information
  • Birth injuries and obstetric trauma
  • Errors in prescription medication
  • Errors in anesthesia Anesthesia A state characterized by loss of feeling or sensation. This depression of nerve function is usually the result of pharmacologic action and is induced to allow performance of surgery or other painful procedures. Anesthesiology: History and Basic Concepts administration
• Medical malpractice insurance does not cover:
  • Sexual misconduct
  • Criminal acts
  • Inappropriate alteration of medical records (fraud)
• Covered costs:
  • Attorney’s fees
  • Court costs
  • Arbitration and settlement costs
  • Compensatory damages
  • Medical damages

Advice to Avoid Malpractice Lawsuits

Above all else, a physician must practice clear and consistent communication Communication The exchange or transmission of ideas, attitudes, or beliefs between individuals or groups. Decision-making Capacity and Legal Competence to avoid getting sued.

Top advice

• Clear communication Communication The exchange or transmission of ideas, attitudes, or beliefs between individuals or groups. Decision-making Capacity and Legal Competence
• Show empathy Empathy An individual’s objective and insightful awareness of the feelings and behavior of another person. It should be distinguished from sympathy, which is usually nonobjective and noncritical. It includes caring, which is the demonstration of an awareness of and a concern for the good of others. Psychotherapy.
• Practice good medicine.
• Maintain proper documentation Documentation Systematic organization, storage, retrieval, and dissemination of specialized information, especially of a scientific or technical nature. It often involves authenticating or validating information. Advance Directives.
• Maintain proper professional boundaries.

Communicate clearly and show empathy Empathy An individual’s objective and insightful awareness of the feelings and behavior of another person. It should be distinguished from sympathy, which is usually nonobjective and noncritical. It includes caring, which is the demonstration of an awareness of and a concern for the good of others. Psychotherapy

Clear communication Communication The exchange or transmission of ideas, attitudes, or beliefs between individuals or groups. Decision-making Capacity and Legal Competence with patients Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship 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 Informed consent Informed consent is a medicolegal term describing the documented conversation between a patient and their physician wherein the physician discloses all relevant and necessary information to a patient who is competent to make an informed and voluntary decision regarding their care. Competency, disclosure, and voluntariness are the key elements upon which IC is based. 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 Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship.

Practice of good medicine

• Continue to learn and stay up-to-date on standards of care in the specialty (e.g., continuing medical education Medical education Conflict of Interest).
• 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 Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship: 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 Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship “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 Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship by a single managing physician.
• Ask for help ( physicians Physicians Individuals licensed to practice medicine. Clinician–Patient Relationship do not know everything).

Maintain proper documentation Documentation Systematic organization, storage, retrieval, and dissemination of specialized information, especially of a scientific or technical nature. It often involves authenticating or validating information. Advance Directives and professional boundaries

• Documentation Documentation Systematic organization, storage, retrieval, and dissemination of specialized information, especially of a scientific or technical nature. It often involves authenticating or validating information. Advance Directives should be complete and accurate for all encounters.
• Cases with poor outcomes should have thorough and immediate documentation Documentation Systematic organization, storage, retrieval, and dissemination of specialized information, especially of a scientific or technical nature. It often involves authenticating or validating information. Advance Directives → “If it wasn’t documented, it wasn’t done.”
• Never alter or backdate an entry; corrections must be made as clearly labeled, time-stamped addenda in the electronic health record.
• Document all interactions with patients Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship and family members.
• Proper documentation and boundaries are especially important in cases of patient nonadherence (formerly “noncompliance”) and informed refusal.
• Do not use social media to communicate with patients Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship.
• Avoid relationships with patients Patients Individuals participating in the health care system for the purpose of receiving therapeutic, diagnostic, or preventive procedures. Clinician–Patient Relationship outside the doctor-patient relationship.