Risk Management



What Is Medical Malpractice?

By Joe R. McFarlane Jr., MD, JD, and Paul Weber, JD

Digest, Spring, 1993

You have just experienced a bad result. Perhaps the posterior capsule ruptured and the nucleus sank back into the vitreous, or the child with a previously esotropic eye awoke from muscle surgery with exotropia, or your patient had an expulsive hemorrhage or cardiac arrest during surgery. Have you committed medical malpractice? Not necessarily. A bad result in and of itself, does not constitute malpractice.

Four Elements of Negligence

When an ophthalmologist is sued for medical malpractice, the usual cause of action is negligence. Negligence is a tort, a private or civil wrong or injury resulting from breach of a legal duty that exists by virtue of society’s expectations regarding interpersonal conduct, rather than by contract or private relationship. The plaintiff has the burden of proof to establish four elements for a finding of negligence:

The existence of a legal duty to use due care owed by a defendant ophthalmologist to a patient;

I. Breach of that duty;

II. Causation;

III. Damage or injury to the patient.

IV. If one of these elements is not established by the plaintiff, a cause of action for negligence fails.

I. Legal Duty

In cases regarding alleged medical negligence, the legal duty of due care is established by the physician-patient relationship. The ophthalmologist usually establishes this relationship by rendering professional services to the patient. It is possible for a physician-patient relationship to be established without the patient ever being examined by the ophthalmologist. The most common instance is where an ophthalmologist gives advice or prescribes medication over the telephone.

A physician may be sued for malpractice even when direct patient care is not involved. For example, an ophthalmologist who shares night or weekend call with other ophthalmologists may be subject to a malpractice action for breach of the standard of care in selection of the covering ophthalmologist if the covering ophthalmologist should commit malpractice.

II. Breach of Duty

Once the existence of a legal duty is determined by the court or the jury, the next element the plaintiff must prove is breach of that legal duty of due care or breach of the standard of care. The standard of care in a medical negligence action requires that a physician exercise the degree of knowledge and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances. The breach may be a failure to diagnose, delay in diagnosis, improper treatment, failure to obtain informed consent, and/or substandard care including substandard surgery. In performing professional services for treatment of the structure, function and diseases of the eye, an ophthalmologist will be held to the higher standard of care of a “medical specialist” based upon his or her specialized training. And, the “medical specialist” standard may be even further extended to subspecialties within ophthalmology.

For breach of the standard of care to be proven in a medical negligence action, generally there must be expert testimony from a physician in the same medical specialty and subspecialty as the defendant. Such testimony is necessary to establish the standard of care and whether or not the standard had been met. A general practitioner who performs the same procedure as an ophthalmologist is competent to testify as an expert against the ophthalmologist with respect to that particular procedure (e.g., giving a fluorescein stain to determine whether there are defects or abrasions on the cornea). Likewise, an ophthalmologist can testify against a general practitioner, but only with reference to the standard of care expected of a general practitioner.

In most courtroom situations, however, each side will want the best qualified expert in a particular specialty or subspecialty. And, the jury will be instructed to appraise the special knowledge, skill, experience, training and education of each expert witness when considering the testimony.

III. Causation

The third element to be satisfied for medical negligence is causation. Causation is sometimes further broken down into actual cause and proximate cause. Thus, if it is established that a breach in the standard of care occurred in a particular cataract operation, and later the patient has an unrelated central retinal vein occlusion, resulting in loss of vision, the element of actual causation would not be satisfied in that the injury of which the patient complained, the loss of vision, was not actually caused by the breach.

Likewise, an injury can be so remote from the breach that the ophthalmologist could not have “foreseen” it. The concept of proximate cause defies precise definition and has given courts and commentators much difficulty in that regard. An eminent legal scholar, Dean William Prosser, wrote:

“As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.”1

For example, an ophthalmologist treats a 4-year-old boy with atropine drops in the right eye. The child develops an allergic reaction, an eczematoid rash around the eye. Due to itching and burning around the right eye, the child inadvertently scratches his left eye, causing a corneal abrasion. The right eye clears up, but the scratch in the left eye develops into a corneal ulcer. Complications lead to eventual loss of the left eye. Upon review of the medical record, it is discovered that the doctor failed to read the child’s prior medical history indicating a previous allergic reaction to atropine. At issue is whether the loss of the left eye was proximately caused by the ophthalmologist using contraindicated drops in the right eye, or whether loss of the left eye is too remote.

Proof of causation, like proof of breach of the standard of care, is usually established by expert testimony. An expert is generally necessary to establish the causal link between the injury complained of and the practitioner’s actions. There are exceptions to the requirement of expert testimony where causation may sometimes be inferred based on the so-called “common knowledge” of the jury.

Another exception to the requirement of expert testimony to prove breach of the standard care and causation is the doctrine of res ipsa loquitur, Latin for the thing speaks for itself. This is a rule of evidence whereby a presumption of negligence of the alleged wrongdoer may be inferred from the mere fact that the injury occurred, provided three conditions are met:

  • It is the kind of thing that does not ordinarily happen without negligence;
  • It must have been caused by an agency or instrumentality within the exclusive control of the defendant-ophthalmologist;
  • It was not due to contribution or voluntary action by the plaintiff.

Some jurisdictions are relatively generous in allowing a plaintiff to apply the doctrine of res ipsa loquitur in medical negligence cases. This liberal application by the court requires the defendant-physician to explain the reason for the plaintiff’s injuries or suffer the penalty of an adverse finding in the absence of such explanation.2 For example, the doctrine of res ipsa loquitur would apply to a situation in which a patient wakes up in the post-anesthesia recovery room following cataract surgery with a broken ankle. In such a scenario, all three elements of res ipsa loquitur theoretically would be met.

In some cases, expert testimony still may be required to establish one of the elements necessary for the application of the res ipsa loquitur doctrine. For instance, in cases involving complex or rare medical procedures it may be necessary for an expert to testify that the injury or occurrence is the kind of thing that does not ordinarily happen without negligence, the first element of res ipsa loquitur.

IV. Damages

The fourth element the plaintiff must prove in a medical negligence case is damages. A patient must have been injured in some way by the breach of the standard of care for medical negligence to exist. The measure of damages is the amount that will compensate for the injury proximately caused by the defendant. These are called “compensatory damages” and are further subdivided into economic and non-economic damages. Possible economic damages might include lost wages and medical expenses (past, present and future). Non-economic damages are subjective and include pain, physical impairment, mental suffering, inconvenience, loss of society and companionship, and humiliation (past, present and future). In some jurisdictions, non-economic damages are limited by law in medical negligence cases; for example, in California non-economic damages may not exceed $250,000.

In certain jurisdictions, an injured patient’s spouse may claim damages for loss of consortium should the injury to the patient be severe enough. These damages include not only the loss of the spouse’s financial support, but also loss of the love, companionship, sexual relations and society of that spouse.

Affirmative Defenses

Even though a plaintiff may prove all four elements of negligence, a defendant-physician can raise defenses which may bar or diminish the plaintiff’s claims. One defense is the failure of the plaintiff to commence the action within the time limits set by statute in the jurisdiction where the case is being brought. This is referred to as the statute of limitations defense.

Another defense is that of contributory negligence or comparative negligence by the plaintiff. Contributory or comparative negligence is conduct by the plaintiff that falls below the standard expected of a person for self-protection. It is a legally contributing cause, in addition to the negligence of the defendant, in bringing about the plaintiff’s harm.3

The statute of limitations defense and the contributory negligence defense are referred to as affirmative defenses, and the defendant has the burden of proving the elements of each of these defenses. While negligence is by far the most common medical malpractice cause of action, other causes of action that may be asserted include battery (usually arising from lack of informed consent), abandonment, breach of contract, and misrepresentation (fraud). Each cause of action has elements that must be established before a plaintiff may recover money damages.

This article is intended to provide a general overview of negligence as it applies to medical malpractice. As it suggests, there are frequently no clear answers to the question “Have I committed malpractice?” Questions about bad results after treatment or untoward events should be directed to the claims representative or risk manager of your professional liability insurance company, or to an attorney experienced in medical malpractice. OMIC insureds are encouraged to call the OMIC office at 1-800-562-6642 and speak with Mary Kasher, claims manager, at extension 21 or Paul Weber, risk manager, at extension 15.

Notes:

  1. Prosser, Keeton: Law of Torts (Fifth Edition).1984;7(41):264.
  2. Levy, Golden, Sacks: California Torts. 1988.
  3. Gifis SH: Law Dictionary (Second Edition). 1984.

 

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