Contents Legal system Malpractice Introduction Four major elements Process of a suit Discovery The trial Consequences HCQIA oversight FAQs Avoiding malpractice Medical record Patients' rights QUIZ

The Four Elements In order for a medical malpractice suit to be successful, a claimant must establish the presence of all four of the following elements: A duty was owed. A duty was breached. The breach caused an injury. Damages occurred. Given the importance of medical malpractice in the risk management landscape, and the centrality of the four elements to any malpractice case, an in-depth look at each of the four elements is warranted. 1) A duty was owed: A legal duty is established whenever a hospital or health care provider undertakes care or treatment of a patient. This duty commences when a health care provider begins any service to the patient (e.g. in the Emergency Department), enters into a contractual relationship with the patient (e.g. when contracting with an HMO or other intermediary), or even answers questions from a patient (e.g. during a telephone conversation). A claimant unable to demonstrate the presence of an active physician-patient relationship at the time of alleged injury has no basis to make a malpractice claim. 2) A duty was breached: A breach of duty here refers to a failure of the health care provider to meet a relevant standard of care for the time and place of the alleged injury. The standard of care is established by expert testimony or, in such cases as retained surgical instruments after operations or burns from improperly applied surgical electrocautery pads (i.e. obvious errors) the doctrine of res ipsa loquitor (literally, "the thing speaks for itself") is invoked thus alleviating the need for expert testimony. 3) The breach caused an injury: The claimant must demonstrate that the failure to conform to the relevant standard of care was a proximate cause of the damages sustained. Stated another way, it must be established that the physician's negligence led the stated injury. However, proving causation is tricky business, whether in medicine or law, and if a claimant is able to establish association, that may be interpreted as causation by a sympathetic jury. For example, a physician who refuses to continue caring for a woman who is six months pregnant because of failure to pay may have problems convincing a jury that the baby's birth defects were not caused by lack of prenatal care in the final trimester. 4) Damages occurred: Unless damages of some sort are sustained by the patient, there is no basis for a claim - regardless of whether or not the physician was negligent. However, demonstrating some degree of "pain and suffering" or "emotional distress" in cases claiming non-economic damages leaves much latitude for the claimant to claim some harm. Finally, as a practical matter, damages are usually defined as the estimated monetary equivalent to compensate the injured person for the loss or injury sustained. Damages (there were damages sustained by the patient) can be divided into direct, indirect and punitive. Direct damages include lost earnings, as well as current and future medical expenses. Indirect damages may include pain and emotional distress, and loss of "consortium" (those services performed by a domestic partner...including companionship, homemaking, etc., and future reproductive capabilities of either sex). Punitive damages are awarded when conduct is intentionally harmful or grossly negligent (i.e. the intentional or wanton omission of care that would be proper to provide, or the doing of that which would be improper to do).