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 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, 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 in psychiatry. pages 1381–1399. Philadelphia, PA: Lippincott Williams and Wilkins.