This is the first installment of a four-part series.
Part I: Introduction
Medical malpractice is an unfortunate issue that all physicians are forced to confront from time to time. My background for this topic includes the following: I am a retired diagnostic radiologist who is certified by the American Board of Radiology. My principle areas of interest are musculoskeletal (MSK) disorders and trauma imaging, with special interest and expertise in spine injuries. My academic career included faculty positions at the University of Louisville, Duke University, Drexel University and Temple University (during my 30 years at Allegheny General Hospital). I was an expert witness and legal consultant in diagnostic radiology for 35 years.
These four articles are a summary of courses I have taught at the Osher Lifelong Learning Institute programs at Carnegie Mellon University and the University of Pittsburgh. Part I is a general introduction to the subject of medical malpractice. In addition to some general statistics regarding the incidence of malpractice suits and their verdicts, I will present a number of legal terms that will be used throughout the articles. Many of the readers may already be familiar with many of them. Part II will discuss the road to the courtroom. Parts III will discuss the four elements necessary for successful prosecution of a medical malpractice suit: Duty of Care; Adverse Outcome; Negligence by the Provider; and Proximate Cause. Emphasis will be placed on the Standard of Care, an alleged breach of which is at the heart of malpractice litigation. Finally, Part IV will discuss the role of the expert witness as well as risk management. Throughout this presentation, three words will be repeated and emphasized: Ordinary, Reasonable and Prudent.
Most physicians are caring, competent and ethical practitioners. It is estimated that 10% of physicians are responsible for 95% of true malpractice. Interestingly, here has been a downward trend in the number of med-mal suits filed in Pennsylvania. According to the Administrative Office of Pennsylvania Courts, there were 2,632 cases filed in 2000. This dropped to 1,449 in 2017. The most dramatic drop occurred in 2003, when a Certificate of Merit was required prior to filing a suit. This document is a written statement submitted by an appropriate licensed professional who attests upon review of pertinent material that there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the practice that is the subject of the complaint fell outside professional standards. Furthermore, such conduct was a cause in bringing about harm to the patient. The “appropriate licensed professional” who supplies such a statement is defined by the statute as an expert with sufficient education, training, knowledge and experience to provide credible testimony. In other words, a non-physician cannot render a statement regarding the conduct of a thoracic surgeon.
A study by researchers at Johns Hopkins School of Medicine published in 2016 reviewed annual death figures in the United States. Heart disease and cancer were the top two causes; medical errors were cited as the third most common cause at 251,000!1 The authors concluded that medical errors were underreported as causes of death. Interestingly, in the same study, firearms killed as many Americans as did motor vehicles.
Who is being sued?
According to a survey of 3,985 physicians in 2015,2 85% of obstetricians/gynecologists, 83% of general surgeons, 79% of orthopaedic surgeons, 72% of radiologists, 58% of anesthesiologists, 46% of internal medicine/family practice physicians and 34% of oncologists report having been sued over the lifetimes of their practices. The reason radiologists have such high suit rates relates to the fact that virtually all medical or surgical diagnoses involves some form of diagnostic imaging (compared to one in 12 cases in 1940).
The same survey listed the bases for suits to be: failure to diagnose (31%), patient injury (31%), improper treatment (12%), poor documentation of patient instructions medication errors and informed consent issues (4% each). Interestingly, the same survey showed plaintiff verdicts in only 3% of cases, of which, 51% had no monetary award (Table 1).2
In my 35 years as an expert witness, I consulted on more than 150 cases. Ninety-eight percent of these were as a defense witness, and the remainder were for the plaintiff. Surprisingly, I encountered only four cases of true malpractice. There were 23 cases of borderline malpractice. The remainder were cases that had less than optimal results or were truly frivolous.
There are many legal terms that will recur throughout this series. I list them below to help you understand the legal processes involved in medical malpractice. I have italicized the recurring words, reasonable and prudent throughout. I also have edited some of the definitions into common, everyday language from the “legalese” in which they were originally written.
“A civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Tort law is one of the major areas of law and results in more civil litigation than any other category. Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another – either by print or broadcast (libel) or orally (slander) – is a tort and used to be a crime as well.”
“Failure to exercise the care toward others which a reasonable or prudent person would do under the same circumstances or taking action that a reasonable person would not. Negligence is accidental as distinguished from ‘intentional torts’ (assault, for example) or from crimes, but a crime can also constitute negligence, such as reckless or impaired driving. In making a claim for damages based on an allegation of another’s negligence, the injured party (plaintiff) must prove: a) that the party alleged to be negligent had a duty to the injured party – specifically to the one injured or to the general public, b) that the defendant’s action (or failure to act) was negligent – not what a reasonably prudent person would have done, c) that the damages were caused (‘proximately caused’) by the negligence. In six states (Alabama, North Carolina, South Carolina, Tennessee, Virginia, Maryland) and the District of Columbia, an injured party will be denied any judgment (payment) if found to have been guilty of even slight ‘contributory negligence’ in the accident.”
“A rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident. Comparative negligence is often so unfair that juries tend to ignore it.”
“A doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence “contributed” to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent defendant.
Joint and several liability
“Referring to a debt or a judgment for negligence, in which each defendant is responsible (liable) for the entire amount of the judgment. If an injured party sues several parties for causing his/her damages, the court may find that several people were ‘jointly’ negligent and contributed to the damages. The entire judgment may be collected from any of the defendants found responsible, unless the court finds different amounts of negligence of each defendant contributed to the injury. Defense attorneys should require the jury or judge to break down the amount of negligence of each defendant and the plaintiff if there is contributory negligence. Often the court will refuse to do so, allowing the plaintiff to collect from whichever defendant has the ‘deep pocket’ and letting the defendant who pays demand contributions from the other defendants.”
Statute of limitations
“A law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state. Federal statutes set the limitations for suits filed in federal courts. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is forever dead (barred).” In Pennsylvania, the statute is two years from discovery of the negligent act or breach of standard for adults and up to age 20 for children.
“The amount of money which a plaintiff may be awarded in a lawsuit. There are many types of damages. Special damages are those which were directly caused by the injury and include medical and hospital bills, ambulance charges, loss of wages, property repair or replacement costs or loss of money due on a contract. The second basic area of damages are general damages, which are subjective both in nature and determination of value of damages. These include pain and suffering, future problems and crippling effect of an injury, loss of ability to perform various acts, shortening of life span, mental anguish, loss of companionship, loss of reputation (in a libel suit, for example), humiliation from scars, loss of anticipated business and other harm. The third major form of damage is exemplary (or punitive) damages, which combines punishment and the setting of public example. Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulent, wanton or grossly reckless way in causing the special and general damages to the plaintiff.”
Res ipsa loquitur
“Latin for ‘the thing speaks for itself,’ a doctrine of law that one is presumed to be negligent if (s)he had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.” Example: a surgical instrument is left in the patient.
“The death of a human being as the result of a wrongful act of another person. Such wrongful acts include: negligence (like careless or impaired driving), an intentional attack such as assault and/or battery, a death in the course of another crime, vehicular manslaughter, manslaughter or murder. Wrongful death is the basis for a lawsuit (wrongful death action) against the party or parties who caused the death filed on behalf of the members of the family who have lost the company and support of the deceased. A lawsuit for wrongful death may be filed by the executor or administrator of the estate of the deceased or by the individual beneficiaries (family members).”
“A person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the ‘expert’ must show the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule (s)he is not an expert or is an expert on limited subjects. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions.”
“Opinions stated during trial or deposition (testimony under oath before trial) by a specialist qualified as an expert on a subject relevant to a lawsuit or a criminal case.”
“The taking and recording of testimony of a witness under oath before a court reporter in a place away from the courtroom before trial. A deposition is part of permitted pre-trial discovery (investigation).”
“The efforts of a party to a lawsuit to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other. Often much of the fighting between the two sides in a suit takes place during the discovery period.”
Duty of care
“A requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person’s actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
Standard of care
“The watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person’s actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party.”
“The relationship between an adverse event in which an injury due to negligence or an intentional wrongful act occurs. In order to prevail in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was directly responsible (the proximate cause and not some other reason) for the damages to the plaintiff.”
“An agreement to do something or to allow something to happen only after all the relevant facts are known. In contracts, an agreement may be reached only if there has been full disclosure by both parties of everything each party knows which is significant to the agreement. A patient’s consent to a medical procedure must be based on his/her having been told all the possible consequences, except in emergency cases when such consent cannot be obtained. A physician or dentist who does not tell all the possible bad news as well as the good, operates at his/her peril of a lawsuit if anything goes wrong. In criminal law, a person accused or even suspected of a crime cannot give up his/her legal rights such as remaining silent or having an attorney, unless he/she has been fully informed of his/her rights.”
Good Samaritan rule
“From a Biblical story, if a volunteer comes to the aid of an injured or ill person who is a stranger, the person giving the aid owes the stranger a duty of being reasonably careful. In some circumstances negligence could result in a claim of negligent care if the injuries or illness were made worse by the volunteer’s negligence.”
I wish to thank attorneys Craig Frischman, Bernard Rizza and Marc Daffner for their advice and aid in explaining legal processes, and Dr. Leonard Berlin, of Skokie, Ill., author of “Malpractice Issues in Radiology,” for his friendship and mentorship on this subject.
(Plaintiff verdict 3%)> $2,000,0003%$1,000,001 – $2,000,000 2%$500,001 – $1,000,000 7%$100,001 – $500,000 17%$1 – $100,00020%$051%
Makary M, Daniel M. Medical errors – the third leading cause of death in the US. BMJ2016;353:2139.
Medscape survey, 2015