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 Communication The exchange or transmission of ideas, attitudes, or beliefs between individuals or groups. Decision-making Capacity and Legal Competence, demonstration of 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, good medical practice, a good doctor-patient relationship Relationship A connection, association, or involvement between 2 or more parties. Clinician–Patient Relationship, not cutting corners, and thorough 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.

Last updated: Jun 15, 2021

Editorial responsibility: Stanley Oiseth, Lindsay Jones, Evelin Maza

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 ReA Reactive arthritis is a seronegative autoimmune spondyloarthropathy that occurs in response to a previous gastrointestinal (GI) or genitourinary (GU) infection. The disease manifests as asymmetric oligoarthritis (particularly of large joints in the lower extremities), enthesopathy, dactylitis, and/or sacroiliitis. Reactive Arthritis) and an “evil deed” (actus rea ReA Reactive arthritis is a seronegative autoimmune spondyloarthropathy that occurs in response to a previous gastrointestinal (GI) or genitourinary (GU) infection. The disease manifests as asymmetric oligoarthritis (particularly of large joints in the lower extremities), enthesopathy, dactylitis, and/or sacroiliitis. Reactive Arthritis).
  • 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.

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 Relationship A connection, association, or involvement between 2 or more parties. Clinician–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 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 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:
  • 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 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.”
  • 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 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 boundaries are especially important in cases of patient noncompliance Noncompliance Clinician–Patient Relationship and informed dissent.
  • 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 Relationship A connection, association, or involvement between 2 or more parties. Clinician–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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