Alleged Malpractice

Elements of a Malpractice Claim

A lawsuit is a civil case seeking monetary damages to compensate for injury. In this particular case, the lawsuit is based on a claim of professional negligence. Other legal theories that can underlie a professional liability lawsuit include abandonment (the practitioner had an obligation to be present but was not) or lack of informed consent. To prevail in a claim of negligence, the plaintiff (person who is suing) must establish the following: (1) a duty to the patient, (2) breach of that duty, (3) causation of injury, and (4) damages. The plaintiff has the burden to prove each of these elements. Typically, in civil cases, the burden of proof is by the greater weight of the evidence, not beyond a reasonable doubt as is the case in criminal cases. In most instances, the issue of duty is not contested, as it is established by virtue of the physician-patient relationship. To establish breach of that duty, the plaintiff typically must present competent expert testimony to show that there was failure to comply with the applicable standard of care by the defendant (person being sued). A poor outcome in itself is not evidence of negligence. The question for the jury is whether the practitioner exercised the degree of skill and care ordinarily exercised by practitioners under the same or similar circumstances. A practitioner holding himself or herself out as a specialist may be held to a higher standard than a generalist. With respect to causation, typically the plaintiff must establish that the alleged deviation from the standard of care was the proximate cause of the claimed injury. In some states, however, that standard has been relaxed in certain types of cases to permit the plaintiff to meet his or her burden by establishing that the deviation increased the risk of harm. Finally, the plaintiff must prove the damages claimed. These typically include economic (lost earnings, medical expenses, etc.) and noneconomic damages (pain and suffering, loss of life’s pleasures, etc.). Depending on the state, there may or may not be caps on how much a jury may award for noneconomic damages.

Notice of a Potential Claim

There are several ways that an anesthesiologist may become aware of a potential malpractice lawsuit. Dissatisfaction with care on the part of the patient or the patient’s family is a significant driver of lawsuits. Thus a complaint to a nurse by the patient or a relative of the patient may be the first indication that a lawsuit may be pursued. Patients also may complain to the surgeon or his or her assistants during the episode of acute care or during a postoperative office visit. Another possibility is that a patient lodges a formal complaint with the hospital administration concerning the practice of a particular anesthesiologist. Often, however, the first indication of a patient’s or family member’s intent to pursue litigation comes when the anesthesiologist receives notice of the lawsuit.

Formally, a lawsuit begins with the filing of a legal document in court. In most instances, the initial filing is called a complaint. In some states, the lawsuit can be initiated by a summons, which simply provides notice that a lawsuit has been filed, and then a complaint with more detailed information subsequently is filed. No action is required until the anesthesiologist is served with the complaint or summons. The complaint typically sets forth the basis of the lawsuit: how the plaintiff was injured by the alleged substandard care and the particulars on which the claim is based. When such a complaint is received, the physician’s malpractice carrier should be notified immediately and sent a copy of all documents received. Particularly once there is notice of a lawsuit, it is critical that all records be preserved and that there is no destruction or alteration of records or other pertinent documents. If discovered, attempts to alter or destroy documents create the impression of culpability and can greatly complicate and, in fact, compromise the defense.