Chapter 9 A Primer on Medical Malpractice Malpractice

Chapter 9: A Primer on Medical Malpractice

Malpractice – What is it? • Error - behavioral matter • Misperception • Mistake • Omission • Substitution • Accident - unplanned event • Malpractice - negligence

Negligence • An act that a prudent person would not have done or the omission of a duty that a prudent person would have fulfilled, resulting in injury or harm to another person. – A civil wrong and part of the law of torts. – Founded on the relationship between the actor and the victim

Requirements of an Act of Negligence • Legally recognized relationship between the health care worker and patient • Health care worker has a duty of care to the patient • Health care worker breached the duty of care by failing to conform to the required standards of care • The breach of duty was the direct cause of harm, resulting in the patient suffering damages as a result of the harm

Malpractice • Negligence that is the proximate cause of injury or harm to a patient resulting from – A lack of professional knowledge, experience or skill that can be expected in others in the profession. OR – From failure to exercise reasonable care or judgment in the application of professional knowledge, experience or skill.

Medical Malpractice • The commission or omission of an action causing an injury is shown to arise from the exercise of professional medical judgment • There must be: – A Physician-Patient Relationship – A Duty to Perform Professionally

Sources of Professional Standards • Government statutes and regulations • Professional society standards • Voluntary accrediting agency standards • Administrative policies and rule of the facility

Theories of Liability • Informed consent • Strict liability • Vicarious liability • Res ipsa loquitur

Re ipsa loquitur The thing speaks for itself – Injury would not ordinarily occur in the absence of negligence – Injury was caused by the actions was within the control of the defendant – Injury is not due to any action on the part of the plaintiff – Evidence surrounding the circumstances is mostly within the control of the defendant

Hospital Liability for Malpractice • Respondeat superior • Ostensible agency • Staff Privileges – Corporate Negligence – Contributory Negligence

Other Liability Theories • Intentional tort • Assault and battery • Libel • Slander • Invasion of Privacy

Types of Damages • Compensatory damage • Awards for pain and suffering • Punitive damages

Statute of Limitations • The maximum period of time after the patient’s injury during which a lawsuit may be commenced. • Most state have a statutory period between one and three years. • Typically the statutory period is deferred (tolled) during infancy and starts to run only on the patient’s 18 th birthday.

Common Malpractice Allegations • Surgery/post-op complications • Failure to diagnose cancer • Surgery/inadvertent act • Improper treatment (birth related) • Failure to diagnose fracture or dislocation

Most Expensive Settlements • Improper treatment (birth related) • Failure to diagnose hemorrhage • Failure to diagnose myocardial infarction • Failure to diagnose infection • Failure to diagnose cancer

Other concerns which may impact liability • Unrealistic patient expectations • Non response to complaints • Illegible medical records • Insufficient information in medical records • No follow-up on abnormal tests • Professional miscommunication

Summary • Risk Managers need to be aware of both professional and facility liabilities • Malpractice claims can be very complex • Setting policies and procedures and following them are important in minimizing malpractice liability