Medical Malpractice

HISTORY The concept of medical liability has been around since ancient times, with different perspectives from across cultures and eras.1 Concrete texts can be found as far back as 1900 BC, when the Babylonian, Hammurabi Code described the kind of care a physician should give, with associated fees and penalties for aspects of care in violation. This code was simple: if the doctor treated a patient successfully, he was rewarded and if the treatment was unsuccessful, then the doctor was punished.2 Grecian philosophers, Aristotle and Plato, had differing views. Plato supported the idea that if a doctor gave his best effort, that would be enough to acquit him of all liability. Aristotle on the other hand, believed that the depth of medical knowledge and adequacy of effectiveness could be determined by another doctor. The Hippocratic Oath is worth mentioning, as it espouses principles for teachers and students of medicine to each other, and to patients.3 The physician pledges to only administer beneficial treatments, to cause no harm, and to live an exemplary life. In other texts, such as the Holy Bible, if the doctor followed the practice as taught, he would not be punished regardless of the outcome.2 In these latter concepts, we see the foundations for some of the modern principles in use today. TORT AND CRIMINAL LAW Common law is a legal tradition that emerged in England, which relied on past case rulings to guide future decisions. These unwritten principles have guided the development of tort law (civil) or criminal law that applies when a person seeks remedy for wrong doing. Over time, they have evolved with separate and distinct features. Criminal law involves “public” wrongs; tort law involves “private” wrongs.4 The state (public) prosecutes violations of criminal law, and the victim’s consent is unnecessary. Criminal law does not require that there is harm. It punishes acts that are harmful to others or to the actor being punished; potentially dangerous acts; and those considered immoral by the community.4 In tort law, the victim (private) decides whether to bring a tort claim and is free to choose not to do so. Tort law requires harm to justify a remedy. It does not remedy the potential for future harm or immoral harm. The remedy is not necessarily proportional, meaning that differing culpability for the same harm may get the same remedy. Children and the insane may also be liable for torts, and generally, they are not criminally responsible.4 ELEMENTS OF MEDICAL MALPRACTICE According to the American Bar Association, medical malpractice is negligence committed by a professional health care provider—a physician, nurse, dentist, technician, hospital, or hospital worker—whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients.5 A simple error does not constitute medical malpractice. To prove a medical malpractice lawsuit, the plaintiff must establish 4 elements: causation, duty to the patient, negligence or breach of duty, and damages.6 Causation Did the action or omission cause a poor outcome? For example, did missing the diagnosis of sepsis lead to a patient’s death, or was it due to pre-existing conditions like myocardial infarction, diabetes, hypertension, hyperlipidemia, and smoking? Duty to the Patient Was the doctor responsible for the patient’s care? This can be shown through various means, such as being on call, covering for a colleague, or treating patients in a clinic. Negligence or Breach of Duty Was the clinician negligent? This is defined by the standard of care: a reasonable physician’s actions in the community with similar training and experience. Examples include removing the wrong organ or operating in nonsterile conditions leading to an infection. Damages Compensation for loss or injury, medical bills, punitive damages, and sometimes an apology from the doctor. The question is whether the act of malpractice warrants financial compensation for the patient. STEPS OF A MEDICAL MALPRACTICE LAWSUIT When a professional health care provider is sued, the psychological and emotional stress can be overwhelming. Understanding each stage of the process can offer confidence and guidance as the lawsuit proceeds. It starts with the inception of the case, the summons, and complaint, then progresses to discovery, including document production, interrogatories, and deposition, and thereafter to settlement or trial.7 There are 3 phases to be aware of in the evolution of a medical malpractice lawsuit. Phase 1 is the inception of the case with the presuit notice period. Phase 2 is the life of the lawsuit and Phase 3 is the trial.8 Phase 1: Presuit Notice Period The presuit notice period is crucial because a physician often receives notice of a claim before consulting a lawyer. Understanding this significance helps the provider to respond proactively and to avoid harmful conduct. The legal process commonly starts when a physician gets a notice letter from a plaintiff’s attorney indicating an intent to sue and encouraging presuit negotiations and settlement. Note that the letter is not a lawsuit but merely informs physicians of potential claims. Once a notice letter is received, the health care provider should immediately notify their malpractice insurance carrier and forward relevant documents to them. Prompt notification initiates insurance coverage; delaying may jeopardize it. The provider should always notify the carrier of anything resembling a legal claim or contact from a plaintiff’s lawyer considering a claim. This allows experienced professionals to evaluate and protect the physician’s interests. After receiving a notice letter, securing the patient’s chart without making any changes is appropriate. Any alteration to the chart can negatively impact the lawsuit. Avoiding discussing the claim with colleagues is paramount, as such conversations may need recounting in court, potentially harming the physician’s position. Claims are only discussed with the insurance carrier and lawyer. Phase 2: The Life of a Lawsuit8 A lawsuit formally begins with the filing of a petition in court, service of the petition and citation on the defendant physician. Upon receipt of service, the physician must promptly notify their insurance carrier to ensure an answer can be filed within the appropriate timeframe. It is advisable to contact the carrier by phone first and then immediately forward a copy of the citation and petition. The carrier will assign a lawyer, if not already done so, and forward all material to the lawyer to initiate the defense. The lawyer must file an answer within the prescribed deadline to prevent the plaintiff from obtaining a default judgment against the defendant and begin proceedings to execute on the physician’s assets for the judgment amount. Discovery requests may accompany the petition. These materials are also time-sensitive and must be forwarded immediately to the insurance carrier. Once the lawsuit has been filed, the discovery phase commences. During discovery, each party can obtain relevant information and documents from other parties involved. The standard for discovery is broad; information and documents are considered discoverable if they are likely to lead to admissible evidence, regardless of their ultimate admissibility at trial. Parties and witnesses must respond to requests for discoverable material. The physician’s involvement typically intensifies during this stage, requiring time and effort to provide answers to written discovery and gather relevant documents. Preparing for a deposition demands focused attention. Beforehand, the physician meets with their lawyer to thoroughly prepare. Depositions could take several hours and require significant concentration. Discovery encompasses various forms: Interrogatories: Written questions served by one party or another. Requests for disclosure: Statutory requests for information that must be produced without objection, covering basic lawsuit information, including potential witnesses, experts, party contentions, damages, and health care providers involved in the plaintiff’s treatment. Requests for production: Requests for written documentation. Requests for admissions: Require the served party to “admit” or “deny” certain facts and contentions. A timely response is crucial to avoid deemed admissions. Expert reports: Contain the expert’s opinion and basis for the opinion, exchanged between parties. Depositions: Sworn testimony sessions, usually conducted after completing written discovery, initially deposing parties, followed by experts. To maintain a medical malpractice action, a plaintiff must present a qualified expert witness to testify that the physician was negligent and that the physician’s actions proximately caused the plaintiff’s injuries. Negligence is defined as failing to use ordinary care, akin to what a prudent physician would have done under similar circumstances. Proximate cause is described as producing an event foreseeable by the carefully exercising physician. A properly qualified expert must be a practicing physician at the time of testimony or during the care and treatment basis of the claim, or qualified through training or experience. Factors considered in determining the qualification of an expert witness include board certification, substantial training or experience relevant to the claim, and current practice in medicine pertinent to the claim. The physician’s attorney may challenge an expert’s qualifications and their ability to establish negligence and proximate cause legally. If the plaintiff’s expert prevails, the defendant physician must present a qualified expert to counter the plaintiff’s expert’s testimony, often using outside experts or testifying personally. Medical malpractice claims have a statute of limitations, within which a plaintiff must file a lawsuit that varies by state. Generally, this period starts from the date of the treatment in question. However, three situations may adjust this rule: Notice letter: Extends the statute by a specified period. Minor plaintiff: The statute of limitations does not start until the minor plaintiff turns 18, allowing viable claims until age 20. Claims for reimbursement of medical bills rendered while under 18 must be filed by parents within 2 years of the treatment date. Discovery rule: If unable to discover the basis of the lawsuit within 2 years of treatment, the plaintiff can file suit within a reasonable time after discovering the basis. Typically occurring during discovery and before trial, mediation aims to settle the case. The court may order mediation, or parties may agree to it voluntarily. Mediation involves an independent third-party facilitating settlement without adjudicatory power. The mediator persuades parties to reach a resolution without imposing settlements. Information disclosed during mediation remains inadmissible at trial unless otherwise admissible. If unresolved, the mediator reports nonresolution to the court. Common methods of resolving lawsuits before trial include: Motion for summary judgment: A dispositive motion constituting a judgment on the merits, typically filed to assert limitations defenses or test the plaintiff’s capacity to produce a qualified expert establishing negligence and proximate cause. Motion to dismiss: Filed when a plaintiff fails to produce a curriculum vitae and expert report establishing negligence and proximate cause within the statutory 180-day period. Courts may grant plaintiffs additional compliance time but ultimately require expert reports to survive dismissal. Voluntary nonsuit: Occasionally, a plaintiff may drop claims against the physician, commonly in multiparty cases. Though not a merits dismissal, dismissed claims can be refiled if within the limitations period. Settlement: Settling parties typically execute compromise settlement agreements outlining terms. Such agreements may include language stating no admission of negligence and settlement solely to avoid the time and harassment of litigation. An agreed motion for nonsuit is filed in court, with the judge issuing an order of nonsuit formally disposing of the case. Phase 3: Trial8 Trial of a lawsuit is an extremely demanding undertaking, not only on the part of the lawyer, but also on the part of the physician. It can be emotionally, physically, and psychologically exhausting, often requiring the physician’s complete and undivided attention to the exclusion of all else. It may take several years after a lawsuit is filed before it actually goes to trial. A lawsuit can typically take from 1 ½ to 3 years. Preparing for trial can be frustrating because a trial date often cannot be established. Generally, the parties to a lawsuit will not know for certain whether they are going to trial until the day of trial, and “special settings,” which attempt to set a firm trial date in advance, can also fail. Nonetheless, when a trial on a given date is possible but uncertain, both the physician and the lawyer must adequately prepare. Before trial, the physician must prepare to provide trial testimony, usually by extensively reviewing the medical records, the physician’s own deposition, and the depositions of other experts and any plaintiffs. Before trial, the physician will meet with counsel to prepare for direct testimony and anticipated cross-examination questions. RELATIONSHIP BETWEEN ADVERSE EVENTS AND MEDICAL MALPRACTICE LITIGATION Getting sued for medical malpractice does not necessarily mean that a clinical error occurred. Clinical error was defined as the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim, according to the Institutes of Medicine Report “To Err Is Human: Building a Safer Health System.”9 In the Harvard Medical Practice which analyzed the relationship between clinical error and malpractice claims, it concluded that most malpractice claims were not associated with adverse events due to clinical error. A total of 280 patients experienced adverse events, but only 8 filed a medical malpractice claim. The overall rate of negligence claims per discharge was 0.13%.10 This phenomenon was also found in the United Kingdom, where it was estimated that 90,000 adverse events occurred annually resulting in 13,500 patient deaths. However, there were only ∼7000 claims and 2000 payments associated with these adverse events.11 Other studies have explored the relationship between malpractice claims, clinical errors, and compensation. In a cross-sectional study of malpractice claims of 33,000 physicians, 37% of claims did not involve errors. The compensation for claims involving no errors (72%) was lower than those that did involve errors. When one looked at the association between compensation and the merit of the case, noncompensation was more common for claims associated with errors (16%) while compensation occurred less frequently when there was no error (10%).12 In a study of New York litigation, neither clinical errors nor adverse outcomes were associated with filing a claim or getting compensation.13 THE IMPACT OF A LAWSUIT Professional Impact The National Practitioner Databank (NPDB) was established in 1986 by Congress to prevent the movement of clinicians from state to state without discovery or disclosing previous damaging performance. The goal was to enhance the quality of care of patients while preventing abuse and fraud. Several different types of entities are required to report about a of professional actions against clinicians and as as the of the Health of 1986 that medical malpractice payments on of clinicians must be to the are required to the time a clinician the medical and during their for clinical has to the information in the The information in the is not to the can a to if they are in the by a to the at Medical malpractice are from the Impact sued can have a impact on as as with the process is will have to plan with to be present during the phase of the process of In will have to time to reviewing and documents can adequately position. physicians are being sued will their practice by certain which are considered back their or There may be of or It is appropriate to professional from or medical with colleagues about the of the case since it may be discoverable in some with are from discovery in most to avoid being of and of and claims, and of patient with the current Patient on to enhance patient Claims in medical liability cases. with patients and treatment and with to know what is in a and timely TORT LAW Medical malpractice claims are to for There are 3 types of and include due to medical or the to of including but not to emotional loss and loss of or loss of are when there are of negligence and are in medical malpractice cases. the with the of the Medical Compensation in leading to a on damages, there has been a of tort in the United Tort has been to counter the medical malpractice liability tort at the state There are various of tort such as on or punitive damages, and several an of and on compensation as as There are with on both and in There are with there are where were initially and then they were deemed to be and by the state and the of had a The impact of had various In a of was on in for physicians and other health care the of medical malpractice claims that in payments by Several studies that there was no in such as before and after the was study found that there was a in per physician after the use of An of the of and patient an However, like failure and sepsis TORT LAW The Health of Tort Claims medical malpractice liability to all qualified health care professionals at community health by of the Health allows the to act as the defendant as to the health care The Medicine of allows to their liability insurance when they provide care to while The and of the the of which quality and performance from being as a of in medical liability AND MEDICAL is a for physician and patient It has and is established. the of patients and the have a for information often are involved and on such as and to a There is significant liability to be aware and health care providers need to the as as to The most is patient information that the Health and Information that involves should be This to include information about medical care that can lead one to which patient is being such as the date of a or the operating on that patient. and should not include patient information in any part of the In during patient care, using is if there is an adverse When on these which the time and on the may be by the but there is some in that it can be found by and When there is a an adverse it an to the patient but also poor These are the most common that in liability. with most medical liability they by the on and physicians and on health care information and there are best to the information should be about health care information that is as as possible and not about It is advisable to a patient and to that to avoid any the time that are and it if are to direct patient one to of when about medical or where one compensation. In the requires of a when is receiving compensation from the It is also advisable to avoid about as this often goes against hospital and is as a of the that unless to do so. use a professional of and if there is any or about can that are worth information about patients from another or a liability for the physician it. patients may about including their as are not However, the information about the physician cannot be or there is a of when a patient a with a physician and it it is a have different consent for of to be harmful the it is not a practice without from the physician. is an and part of health information for patients and the and health care providers are to need to the and best to avoid liability. IMPACT The of has the have from being one of the liability to being a of patient This is due to a of such as the of and patient According to the American Medical when with all physicians, are less likely to be sued within the past or sued during their The rate of the of claims in a to date per physicians is in as to when at all under the age of years were less likely to be sued than those years of age and Medical malpractice is a in the of However, with knowledge of the of tort law, one can to the of the medical legal In one can attempt to the of being sued by being aware of