Medical malpractice and risk management

Duty

The first element a plaintiff must establish in a medical negligence lawsuit is the existence of a duty. This duty arises out of the PA–patient relationship. After that relationship has been established, a PA must possess and bring to that relationship the degree of knowledge, skill, and care that would be exercised by a reasonable and prudent PA under similar circumstances. The knowledge, skill, and care established by a profession and required to be rendered in any patient–PA encounter comprise the “standard of care.” In a medical malpractice lawsuit, a plaintiff must show that the defendant PA failed to exercise the applicable standard of care by commission or omission. That is, the plaintiff establishes a breach of the standard of care by the PA doing something that should not have been done or by failing to do something that should’ve been done. “Good faith” or “best intentions” have no place or meaning in a medical malpractice lawsuit. Instead, the PA will be judged on whether or not conformance occurred with an acceptable and recognized standard of care.

Breach of duty

The second element of medical negligence a plaintiff must prove is that of “breach of duty.” A plaintiff establishes this element by proving the PA failed to act in accordance with the applicable standard of care. Of course, before a plaintiff can establish that a breach of the standard of care occurred, the plaintiff must first establish what constitutes the standard of care. In most cases, the existence of a standard of care must be proven through the use of expert witnesses. That means the plaintiff must retain as a witness another PA qualified to testify as to the standard of care owed by the PA being sued. An expert witness must testify that, based on that expert’s knowledge, education, training, and experience, a specific standard of care exists concerning the alleged act of malpractice committed by the PA being sued. Furthermore, the expert must also testify as to the manner in which the PA breached the standard of care. After the plaintiff establishes in a lawsuit both the existence of a standard of care and its breach, the PA may also use expert PA witnesses or the PA’s own testimony to demonstrate that no such breach of the standard of care occurred. Although the vast majority of cases rely on expert witness review and testimony to establish the standard of care and a breach thereof, some medical malpractice cases do arise in which the alleged breach of duty is so obvious as to be within the comprehension of a layperson, and no expert testimony is needed. Cases such as wrong site surgeries and failure to remove a lap sponge are examples that probably do not require an expert witness to establish a standard of care or to note that a standard of care was breached by a PA.

Importantly, a PA is not held to a standard of “perfect” medicine. Liability for medical malpractice will not arise merely because a PA makes an incorrect diagnosis or institutes an incorrect plan of treatment. The key to determining whether a breach of the standard of care occurred is examining the process used by the PA in arriving at the diagnosis or deciding on a plan of treatment and whether or not the process met the standard of care.

Causation

The third element of a negligence case a plaintiff must prove revolves around the relationship between the negligent act or omission committed by the PA and the resulting injury. The plaintiff must establish a “causal connection” between the negligent act and the injury. In legal terms, the “causal connection” is commonly referred to as the “proximate cause.” The concept of causation differs markedly from that of causation as used in medical terminology. In the legal sense, “causation” refers to a single, causative factor and not necessarily the major cause or even the most immediate cause of the injury. In contrast, medical causation or etiology usually refers to the major or immediate cause of an injury. Causation can often present as an elusive and difficult concept to understand for both medical professionals and juries. One way for laypeople to grasp the meaning of causation is an awareness of the “but for” test. In simplest terms, if one occurrence would not have occurred “but for” another occurrence, legal causation exists. As contrasting examples, a PA participating in a surgical procedure may leave behind instrumentation, resulting in an intestinal perforation with possible subsequent development of abscesses, future surgeries, or even death. The intestinal perforation would not have occurred “but for” the failure to remove the instrumentation and perform a proper count of instrumentation at the conclusion of the surgery. Legally, the failure to remove the instrumentation created the proximate cause of the patient’s injuries. In contrast, a physician or PA’s delay in diagnosing a patient or even delaying referral of a patient who has a highly aggressive malignant and terminal neoplasm might be considered an act of malpractice. Nevertheless, depending on the stage of the tumor at the time of the initial presentation, the failure to diagnose or refer may not have legally caused the patient’s ultimate outcome (i.e., death). In other words, the tumor may have been so advanced at the time the physician or PA failed to make the proper diagnosis or failed to make a proper referral that even a timely referral or proper diagnosis would not have saved the patient. In such a case, the breach of the standard of care (the delay in making the proper diagnosis or referral) did not proximately cause the patient’s death. The patient already had an unavoidable death sentence even at the time of the alleged misdiagnosis.

Injury and damages

The last element a plaintiff must prove in a medical malpractice claim is proof of damages. In general, the concept of damages encompasses the actual loss or damage sustained by the plaintiff arising from the PA’s breach of the standard of care. If the plaintiff cannot prove harm, there can be no recovery.

Generally speaking, two types of damages may be awarded in a civil lawsuit: special damages and general damages. Special damages are damages that have a finite or tangible economic number attached to them. Examples of special damages are the amount of past, present, and future medical bills incurred as a result of the medical negligence; past, present, and future lost wages; future lost wages arising out of the loss of earning capacity; and in a wrongful death malpractice claim, funeral expenses. The other type of damages, general damages, are awarded for the nontangible, noneconomic injuries. These types of injuries include pain and suffering, mental anguish, grief, and inconvenience.

A third type of damage may be awarded in a medical malpractice lawsuit, but not all states or jurisdictions recognize this third form: punitive damages. Currently, 34 of the 50 states in the United States do allow awards that include the possibility of punitive damages. Punitive damages are intended to make an example of the defendant PA or to punish egregious behavior. Such damages generally are given when the defendant’s conduct has been intentional, grossly negligent, malicious, violent, or fraudulent or has shown reckless disregard for the consequences of his or her conduct. Again, not all states allow for punitive damages, so PAs must familiarize themselves with the laws of the jurisdiction where a practice is established.