Malpractice in Salivary Gland Surgery

Overview – The Legal Requirements for a Malpractice Claim

In the United States, medical malpractice laws vary from state to state. Generally speaking, the laws require a plaintiff (the person filing the lawsuit, typically the patient) to establish four things: (1) that the clinician owed the patient a duty of care; (2) that the physician breached the standard of care; (3) that the breach was a proximate cause of the claimed injury; and (4) that the patient suffered damages as a result. The plaintiff must prove all elements by a preponderance of the evidence, which means that it is more likely than not that the plaintiff has proven his claim. In most cases, the duty of care is established easily, as a clinician who assumes the responsibility of treating a patient assumes a duty of care to that patient.

Typically, the “standard of care” is defined as what a reasonably prudent clinician in the same or similar circumstances would do. When a clinician does not act as a reasonably prudent clinician in the same or similar circumstances, that clinician has “breached” the standard of care and is considered negligent. There are various types of negligence claims that may arise (see Box 57.1 ). To establish the standard of care, the plaintiff generally must identify an expert (or experts) who will testify as to what the standard of care requires and how the defendant clinician breached it.

The experts are retained by the party making the claim, and costs to retain experts can be thousands of dollars through trial. An expert is not required when the alleged negligent act is the type that would not ordinarily occur in the absence of negligence (a claim known as a res ipsa loquitor or “the thing speaks for itself”). Examples include things like leaving a foreign body in a patient after surgery unintentionally, or operating on the wrong body part of the patient. In most cases, the experts must review the medical records at issue and render an opinion based on their education, knowledge, and experience. This can be supplemented with citations to scientific literature, textbooks, and treatises, as well as various policies and guidelines from various organizations, to strengthen the opinion. Before trial, often the parties try to challenge the qualifications, knowledge, and ability of the expert to testify.

In response, the defendant can (and usually does) retain experts in the same manner to testify that the clinician met the standard of care. Some states also permit the clinician to serve as his own “expert” to defend his care. It is typical that the experts on opposing sides will disagree as to what the standard of care is and whether the defendant breached it. Many of these malpractice cases therefore become “battles of the experts” where a jury must decide which expert is more credible and believable.

Even if a jury accepts that the clinician breached the standard of care, the plaintiff must also prove that the clinician's breach of the standard of care was a “proximate cause” of the claimed injury. Different jurisdictions apply different definitions of proximate cause, but the two main standards for evaluating proximate cause are the “but for” test and the “substantial factor” test. In states that apply the “but for” test, a plaintiff must prove that the claimed injury would not have occurred “but for” the defendant's alleged misconduct; if the claimed injury would have occurred even without the alleged misconduct, the plaintiff cannot establish proximate cause. The “substantial factor” test, by contrast, only requires that the plaintiff establish that the defendant's conduct was a “substantial factor” causing the claimed harm. As with the standard of care, the proximate cause element must be supported by an appropriate expert.

Finally, the plaintiff must prove that his damages were caused by the clinician's negligence. This may not require expert testimony, depending on the type of damages claimed. In most cases, a plaintiff can claim damages for pain and suffering, past and future lost wages, past and future medical expenses, and other costs necessitated by the harm. In cases where a clinician's conduct is so egregious that it rises to the level of recklessness or intentional misconduct, a plaintiff may also claim punitive damages. Those damages may not be covered by the clinician's insurance carrier.

To get to trial can take many years. In that intervening period, the attorneys representing the plaintiff and the clinician will engage in discovery, which involves amassing records, taking depositions of the parties and witnesses, and addressing potential legal issues. During that time, and before trial, most cases will be dismissed or will settle, either through direct negotiations or alternative dispute resolution (e.g., mediation or arbitration). If there is an adverse finding against a physician, there is usually a report to the National Practitioner Data Bank (NPDB). This is a confidential data repository to improve healthcare quality by preventing clinicians and other practitioners from moving between states without disclosing their prior harm to patients and others.

There are various types of claims that are raised against surgeons. For example, in a 2012 case, a surgeon removed a patient's tumor in her right parotid gland. During the surgery, the surgeon injured the facial nerve but repaired it.

The patient sued the doctor and claimed that the surgeon breached the standard of care by failing to identify and protect the facial nerve before and during surgery. As a result of the alleged negligence, the patient claimed that she suffered an impairment to her facial nerve. At trial, while the patient's expert testified that the defendant breached the standard of care and caused the claimed injuries, the defendant's expert testified that the transection of the facial nerve was unavoidable in this complex case and was not a breach of the standard of care. The jury concluded that the defendant did not breach the standard of care and found in the surgeon's favor.