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”)
- Duty to the patient (established doctor-patient relationship): The doctor in question was in charge of the patient’s care.
- 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
- Damage was suffered by the patient either physically or emotionally.
- Direct causation between the breach of duty and the poor outcome
- 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
- 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:
- Delayed diagnosis
- Surgical errors
- Birth injuries and obstetric trauma
- Errors in prescription medication
- Errors anesthesia Anesthesia Anesthesiology is the field of medicine that focuses on interventions that bring a state of anesthesia upon an individual. General anesthesia is characterized by a reversible loss of consciousness along with analgesia, amnesia, and muscle relaxation. Anesthesiology: History and Basic Concepts 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
Advice to Avoid Malpractice Lawsuits
Above all else, a physician must practice clear and consistent communication to avoid getting sued.
- 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.
- Legal Information Institute. Tort. Retrieved June 11, 2021, from https://www.law.cornell.edu/wex/tort
- 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/
- Brendel, R. W., Wei, M. H., Schouten, R., & Edersheim, J. G. (2010). An approach to selected legal issues: confidentiality Confidentiality Confidentiality is a set of rules that dictates the protection of health information shared by a patient with a physician. In general, this information should only be used to dictate medical decision-making steps and can only be disclosed to a 3rd party with the patient's express consent. Patient-Doctor 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
- 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 Ethics Medical ethics are a set of moral values that guide the decision-making of health care professionals in their daily practice. A sense of ethical responsibility has accompanied the profession of medicine since antiquity, and the Hippocratic oath was the 1st document to codify its core ethical principles. Basics of Medical Ethics in psychiatry. pages 1381–1399. Philadelphia, PA: Lippincott Williams and Wilkins.