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  Discuss the four components of negligence in a medical liability lawsuit and how to best mount a defense in each of these contexts.

  
  
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  Recount the best practices described in risk management to reduce the chance of being sued.

  
  
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  Know how to confidently prepare for depositions and trial.

Professional medical negligence lawsuits can be one of the most devastating crises in a physician’s career, which can destroy even the most talented clinicians. The very nature of what we do lends itself to catastrophic outcomes, and events far beyond our control can become the source of others’ blame. It is incumbent on all physicians to understand the medical negligence arena, and how they can protect their ability to continue to care for their patients.

Medical professional liability (also coarsely known as medical malpractice) continues to be a significant issue in the delivery of health care in the United States. Significant resources are expended annually in the form of defensive medicine, defense of frivolous suits, and expensive medical liability insurance premiums. According to a study in the New England Journal of Medicine, orthopedic surgeons were the fourth most likely specialty to be sued for medical negligence. The study estimated that 88% of orthopedic surgeons will have been sued by the time they are 45 years old, and it further predicted that 99% of orthopedic surgeons would be sued by their sixty-fifth birthday.¹ Anecdotal experience of professional liability defense attorneys suggests that an orthopedic surgeon can expect to be named in a lawsuit roughly once a decade.

The issue at hand is that patients who are injured through negligence by their physicians do have the moral and legal right to seek restitution. The main concern is that the current system fails to effectuate true restitution for these patients, and both injured patients and physicians are abused by the process in the interim. Dr. Weinstein (the past-President of the American Academy of Orthopaedic Surgeons) stated that injured patients only receive 28% of the money that is paid into the medical liability system.² A RAND study³ estimated that 60% of the resources involved in these cases go to administrative expenses, and most of that to legal fees! In addition, depending upon the state where the physician practices, there may be varying degrees of control over the merit of the lawsuits brought. In certain jurisdictions, there is little disincentive to a plaintiff’s attorney “rolling the dice” on a questionable case in the hopes of achieving a headline-grabbing result.

Medical liability is an issue that has plagued physicians for centuries. The law in the United States was actually derived from the system used in England. This system of “common law” is much different from the “civil law” system that was used in the Roman structure. In the common law system, judges made decisions in cases that led to the development of the law itself. This method of law is based on the adversarial system where parties advocated their positions and the final decision was made by the court.⁴

Interestingly, the first medical malpractice crisis occurred during the time of the Black Plague. Physicians were held to the standard of effecting a cure rather than the standard of delivering treatment according to the standard of care. When patients died from the bubonic plague, physicians were subject to suit for failing to cure the patient. Several unfortunate physicians were even prosecuted for “mayhem” under the criminal law system!⁴

One of the most infamous medical liability cases in the United States involved a patient named Charles Lowell.⁵ On September 7, 1821, Mr. Lowell sustained what is thought to be a dislocation of his hip after a horse-related accident. Two local physicians tried in vain to close reduce his hip, and they stopped when they believed that the hip was realigned. Mr. Lowell continued to have problems, and after 3 months he sought out Dr. J. Collins Warren, who was actually the first chief surgeon at the Massachusetts General Hospital. After finally realizing that he would never recover normal function, Mr. Lowell sued all 3 of his physicians, and he was eventually awarded $1962. He continued to blast these 3 physicians and the medical system in general through newspapers across the country. The negative press associated with this case must have surely affected the practice of many physicians across the country. A sobering fact is that this negative campaign was successfully launched against the physicians more than a century before digital and cellular communication!

When physicians are sued for “medical malpractice” today, they are actually sued for negligence. In the legal sense, negligence is defined as “a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.”⁶ When physicians are sued for negligence, the plaintiffs are in fact stating that the physicians did not perform their duty as physicians in a manner that a reasonably prudent physician would in a similar situation. This is the basis of “medical malpractice” in the United States.

The whole concept of legal negligence is comprised of 4 necessary factors. Plaintiffs must demonstrate that the defendant violated these elements in order to demonstrate negligence.

1. Duty

The concept of duty in medical negligence seems rather apparent. “Did the physician have a duty to care for the patient?” The answer to this question is obvious much of the time. When patients come to see us, we assume the “duty of care” in that we accept the obligation of caring for the patient. The physician-patient relationship is established and we have formed a contract.

There are times that this is unclear. If you are on call and consulted on a patient in the hospital but do not actually examine the patient until the next day, when does your physician-patient relationship initiate? If you opine upon an acquaintance’s orthopedic condition while you attend a cocktail party, did you establish a legal duty to the patient? What if a colleague presents a case to you and seeks your informal opinion? Does that constitute a legal duty to that patient? Lastly, every one of us has been asked to give hallway consults on a friend’s medical condition. Does that imply that we established a duty to our friend in that he or she is now a patient?

The physician has a duty to care for the patient according to what the standard of care demands. That is, the physician has an obligation to deliver care for the patient according to what a reasonably prudent physician would deliver under similar conditions and circumstances. This implies, of course, that the physician actually had a duty to treat that specific patient in the first instance. Without a duty, the case against the physician would fail.

2. Breach of Duty

Once the duty to a patient is established, the plaintiff must then demonstrate that the physician failed to provide care at the level that was the accepted standard. The plaintiff generally must present expert witnesses who elaborate the standard of care to the jury, and the plaintiff then tries to persuade the jury that the physician breached his or her duty to deliver treatment according to that standard. A true claim of negligence is only present when the physician had a duty to the patient and the physician committed a breach of duty to that patient.

Several interesting issues arise in the breach of duty analysis. For example, many medical societies have elaborate clinical practice guidelines where expert panels have distilled the medical literature into current recommendations on how physicians should treat certain conditions. From these clinical practice guidelines, appropriate use criteria are sometimes generated defining the specific patient population and situations when resources should be used. Do these guidelines and criteria unfairly set up physicians for a negligence claim if physicians justifiably vary from them due to specific patient situations? The medical societies reasonably defend these documents because all one has to do is gather what is already in the medical literature, and medical societies also add disclaimers that these are guidelines, not standards of care. However, it is commonly seen that aggrieved patients will use these guidelines as a means of establishing the most reasonable approach to treating their conditions and complain that their treatment providers deviated from the guidelines. What were intended as tools for the caregivers can often become swords used against them.

3. Causation

Causation is the next element of negligence. A claim for malpractice cannot prevail unless the alleged breach of the standard of care actually resulted in some form of damage to the patient. Put another way, negligence without harm does not give rise to liability.

In virtually all jurisdictions in the United States, the plaintiff must establish that the breach was the “proximate” or “but-for” cause of his or her injury. That is, the plaintiff must demonstrate that “Were it not for the defendant’s breach of duty, I would not have been damaged.” Interestingly, it is not necessary that the breach be the sole cause of the injury. More than 1 cause can converge to result in the injury, so long as the injury would not have occurred without them. For example, if a patient is managed inappropriately by more than 1 physician during a hospitalization, resulting in injury, each of those physicians could be liable to the patient so long as their negligence “contributed to cause” the injury.

Any damages that the plaintiff claims must also be caused by the breach of duty by the defendant. It is very possible that the defendant violated the standard of care, but that violation may not be related to the supposed injury. The plaintiff is supposed to make this connection again, typically with the aid of expert witnesses.

4. Damages

Damages are the final element of a professional negligence claim. The term broadly refers to the ways in which a value is placed upon the injury sustained, if any. If there are no damages, then the only situation present is an isolated violation of the standard of care that doesn’t really mean anything.

Damages can be comprised of different types. Economic damages (also sometimes known as “special damages”) may be calculated from the actual losses that the plaintiff sustained as a result of the negligence. Often these damages can be easily calculated from data, including lost wages, medical expenses, and life care plans. Calculations of lost future earnings can be more nebulous and may require expert opinions on the plaintiff’s statistical likelihood of employment, anticipated raises in income due to inflation, and the value of employer-provided benefits. Noneconomic damages can be more difficult to calculate and may include subjective damages such as pain, disfigurement, loss of enjoyment of life, and loss of consortium (ie, loss of a spouse’s companionship).

While uncommon, punitive damages are sometimes also available to plaintiffs. Such a claim necessitates a determination by the fact-finder (typically a jury) that the defendant physician’s conduct was “wanton,” “reckless,” “intentional,” or otherwise showed a complete disregard to the consequences of his or her actions. This is a higher and more difficult showing than mere breach of the standard of care. The measure of punitive damages can be limited by the particular jurisdiction’s laws, as well as Constitutional “due process” considerations. But ultimately, the point of punitive damages is to deter a defendant financially from conduct deemed reprehensible.

Plaintiff’s attorneys usually work on a contingency basis; that is, they get compensated for their work only if there is a settlement with the defendant or an award from the trial. Plaintiff’s attorneys will usually have to invest significant amounts of their financial resources into a case, and they will not get any of that money back unless they win enough money to cover their investment. As a result, plaintiff’s attorneys are not usually interested in representing clients who do not have damages significant enough to cover this cost.

Studies have repeatedly demonstrated that poor communication is central to many medical liability lawsuits. Certainly not all of the issues associated with communication are the fault of the surgeon, but there are times where we can improve. Suffice it to say, patients who believe their surgeons cared about them and talked with them clearly and openly are less likely to become plaintiffs. The American Academy of Orthopaedic Surgeons (AAOS) and other organizations often host communications workshops where physicians can develop their communications skills.

Documentation is another issue commonly seen in medical liability actions. The medical chart is one of the primary items analyzed in supporting the defense of the physician or the complaint of the plaintiff. The completeness of the record is often integral to the physician’s defense. Some have voiced concern that the modern digital medical record may actually increase a physician’s risk to a lawsuit due to templated notes and other issues. To be sure, depending upon the software utilized, it can be difficult for physicians to enter, in narrative form, information explaining their thought processes with a given patient. The lack of such information can lead to the conclusion that the physician was not thoughtfully engaged in the care of the patient. At the same time, the digital record also can significantly increase the legibility of the notes, and if utilized properly, allow integration of other essential relevant information into the document.

An unfortunately frequent source of lawsuits is the missed diagnosis of compartment syndrome. This significant condition can dramatically affect a patient’s outcome following injury, and onset of compartment syndrome rarely is any fault of the treating physician. A study performed at Johns Hopkins⁷ demonstrated that documentation was inadequate in 70% of the cases. They instituted an educational program to improve the documentation of patients with this condition. A Canadian study⁸ reviewing closed cases of compartment syndrome found that one of the most common elements resulting in a plaintiff’s verdict after compartment syndrome included the nursing staff’s failing to monitor patients and communicate findings to the attending physician. A closed claim study in the United States⁹ demonstrated that fasciotomies performed within 8 hours of first presentation of symptoms were associated with a successful defense of the claim. Once again, they found that poor communication usually ended in a poor outcome and a plaintiff’s verdict against the physician. In other words, adequate communication among care providers is no less essential than adequate communication with the patient.