Topic 4

Professional Liability and Medical

Malpractice

Chapter 6
Professional Negligence
and Medical Malpractice

• Malpractice: professional misconduct or

demonstration of an unreasonable lack
of skill with the result of injury, loss, or
damage to the patient
– Failure to meet professional standards of
care . Standard is set by observing what a
competent peer in another location would
do in a similar situation.
– Often involves more than just than just a
poor outcome for the patient
– Influence by the physician’s judgment
 Professional Negligence
and Medical Malpractice (cont’d)
• Negligence:
– unintentional action that occurs when a
person performs or fails to perform an
action that a reasonable person would
or would not have committed in a
similar situation
– Focus more on the outcome of the
treatment/procedure
The Tort of Negligence

Malfeasance:

Performing a wrong or illegal act

Misfeasance:

Improperly performing an otherwise proper or lawful act

Nonfeasance:
Failure to perform a necessary action
FOUR Ds OF NEGLIGENCE

Duty

Dereliction of duty

Direct Proximate cause

Damages
 Four Ds of Negligence

Direct or
Duty: Dereliction: Damages:
proximate cause:
• responsibility • neglect of duty / • continuous • injuries caused
established by failed to provide sequence of by the
physician– a correct events, defendant
patient standard of care unbroken by any
relationship. • Example fail to intervening
Patient must inform patient cause, that
prove that about risks of produces injury
relationship had the procedure and without
been which injury
established would not have
occurred
Preponderance of Evidence

• One side must demonstrate a greater weight

of evidence than the other side
• The burden of proof remains on the plaintiff

WHAT HAPPENS IF BOTH SIDES DEMONSTRATE

EQUALLY CONVINCING EVIDENCE?
 Res Ipsa Loquitur

• Means “The thing speaks for itself”

• So obvious that expert witness are
usually not necessary
• Three conditions must be present
1. Injury could not have occurred without
negligent act
2. Defendant had direct control over cause
of injury
3. Patient did not and could not contribute
to the injury
 Res Ipsa Loquitur

• In order to have a civil malpractice lawsuit, the

plaintiff (patient) must show that
– A relationship had been established between the patient
and the physician
– This relationship established a duty of the physician to
the patient
– This duty is required the physician to perform at a
particular SOC
– The duty was breached by the physician
– The patient received an injury as a result of the physician
breach of duty and
– The physician’s breach of duty was the proximate cause
of injury to the patient
 Damages

• Any injuries caused by the defendant.

Patients seek recovery or compensation for
a variety of damages
– Permanent physical disability
– Permanent mental disability
– Loss of enjoyment of life
– Personal injuries
– Past and future loss of earnings
– Medical and hospital expenses
– Pain and suffering
 Damages

Compensatory Punitive or Wrongful death

Nominal damages:
damages: exemplary damages: statues
• court-awarded • monetary award • slight or token • If a patient’s death
payment to make by court to person payment awarded has been caused
up for loss of harmed in by court. by the physician’s
income or malicious and • It could be a small negligence, the
emotional pain willful way; sum awarded to a deceased person's
and suffering • meant to punish plaintiff who has dependents may
offender suffered no sue for wrongful
substantial loss or death.
injury but has
nevertheless
experienced an
invasion of rights
 Fraud

• Fraud: the deliberate misrepresentation or

concealment of facts from another person for
unlawful or unfair gain
• One of the fastest-growing crimes in health care
Defense to Malpractice Suits
• Affirmative defenses: Allow defendant to
present evidence that patient’s condition was
the result of factors other than negligence
• Defenses could be in the form of:

Assumption of Contributory
Denial
risk negligence

Comparative Borrowed Statute of

negligence servant limitations

Good
Res Judicata Samaritan
Laws
 Denial Defense

• Plaintiff must prove defendant did wrongful or

negligent act
• Therefore, denial is most common defense
• Court must determine if defendant caused
injury
• May bring in expert witnesses
• Signed informed consent documents- assist a
physician in proving that he or she did explain
the effect
 Assumption of Risk

• Prevents plaintiff from recovering damages if

plaintiff voluntarily accepts a risk associated with
the activity
• Plaintiff must know and understand risk involved,
and choice to accept risk must be voluntary
• Should have signature to document that patient
authorizes procedure, understands the risks, and
consents to treatment
Contributory Negligence

• Conduct on part of plaintiff that

contributes to cause of injuries
• Complete bar to recovery of damages
• Means plaintiff will receive no monetary
damages
Comparative Negligence

• Similar to contributory negligence

• Plaintiff’s own negligence helped cause injury
• Not a complete bar to recovery of damages
• Allows plaintiff to recover damages based on the
amount of defendant’s fault
• Example if a physician is 60 percent at fault and
the patient is 40 percent at faulty and the patient
suffers RM 100,000, the physician will be required
to pay RM60,000
 Borrowed Servant

• Special application of respondeat superior

• Employer lends an employee to someone else
• But, under borrowed servant doctrine, the
employer is not liable for any negligence caused
by the employee while in the service of a
temporary employer.
• example- if a hospital allows an operating room
nurse to assist a surgeon while in the operating
room, the surgeon (captain of the ship) is
legally responsible for the nurse’s actions.
Statute of Limitations

• Set time period for injured party to file lawsuit

• 1-3 years depending on the state
• Exception is rule of discovery
• Statute of limitations does not begin to “run”
until injury is discovered
 Res Judicata

• Means “The thing has been decided” or “a

matter decided by judgment”
• Once court decides case, plaintiff cannot
bring new lawsuit on same subject
• When a patient has sued a hospital and
won the case for an injury caused by
medication error, that patient cannot sue
that hospital again for the same error.
 Professional Liability

Physical conditions
Civil liability cases Illegal sale of drugs
of the premises
• Physician may be • Institution may be • Must carefully
sued under a liable when screen healthcare
variety of legal regulatory employees
theories standards have
been violated
• If someone walks
on a wet floor in
spite of the
caution sign, it is
at his/her own risk
 Professional Liability

Promise to cure Law of agency

• Considered under contract law • Legal relationship formed when one

• All promises to cure must be in person agrees to perform work for
writing another
• Respondeat superior
• The healthcare professional should
• Have a written job description
that clearly defines the
responsibilities, duties and skills
• Use extreme care when
performing their job
• Carry out only those procedures
for which they are trained
• Be honest about any errors or
inability to perform a procedure
 Professional Liability

• Liability Insurance – usually employers have this

to cover the act of their employees

Claims-made insurance:
covers insured party for claims made only during the time period policy was
in effect

Occurrence insurance:
covers the insured party for all injuries and incidents that occurred while
policy was in effect regardless of when claim is made
 Professional Liability

• Covers any damages the physician/employer

Malpractice must pay if he or she is sued for malpractice

and loses
• All licensed and certified medical professionals
Insurance should carry malpractice insurance
• An expensive type of insurance
Working in High Risk Areas

• Common high risk behaviors that should be avoided

– Medication errors
– Failure to monitor patient
– Failure to follow proper chain of command
– Lack of communication re: abnormal test results
– Not knowledgeable to determine patient’s condition
Malpractice Prevention

General
Safety
guidelines

Communication Documentation

Please refer to page 141-143

 Pop Quiz

1. Name and discuss the four Ds of

negligence.
2. Explain the difference between
malfeasance, misfeasance, and
nonfeasance.
3. List four types of damages.
4. List five ways to prevent malpractice
based on good communication.
 Match the following
Column A Column B

liable The thing has been decided

tort Legally responsible for one’s action

Misfeasance Neglect

Res ipsa loqiutor Failure to perform necessary action

Res judicata Improper doing of a lawful act

proximate The thing speak for itself

Dereliction A civil wrong

 Answer the following

• Which of the four Ds is violated when a

physician fails to inform the patient about
the risks of not receiving treatment?
a. duty
b. dereliction
c. direct cause
d. damages
 Answer the following

A phlebotomist draws blood from Sam

Ford’s right arm. Sam experiences pain and
numbness in that arm immediately after the
blood is drawn. This is an example of what
legal doctrine?
a. duty
b. feasance
c. res judicata
d. proximate cause
 Answer the following

Allan Walker continues to smoke after his physician

warns him that smoking carries the risk of lung
cancer. His physician documents this admonition in
Allan’s medical record. When Allan develops lung
cancer, he sues his doctor for malpractice. Allan
states that he did not know about the risk of
continued smoking. What malpractice defense
might apply in this case?
a. Denial
b. assumption of risk
c. contributory negligence
d. borrowed servant
 Fill in the Blanks

• A special application of respondeat superior in

which an employer lends an employee to someone
else is known as the _____________ doctrine.
• _________damages are an amount of money
awarded by the court to make up for loss of income
or emotional pain and suffering.
• A defense that the plaintiff’s own negligence
helped cause the injury is called __________
negligence.
• __________ of risk is a legal defense that prevents
a plaintiff from recovering damages if the plaintiff
voluntarily accepts a risk associated with the
activity.