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 18th 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