Elements of malpractice actions

A patient is entitled to recover monetary compensation from a physician if the patient can prove that the physician’s conduct was below the standard of care and that the conduct caused the patient’s injury. It is not enough that the patient suffered a complication or was injured as a result of medical care. The patient must show that the medical care provided by the physician was below the standard of care.

To prevail in a lawsuit, the patient has the burden of proving that a deviation from the standard of care occurred and that the injury was directly caused by that deviation. In most cases, a preponderance of the evidence must support the allegations, and proof must be to a “reasonable degree of medical certainty.” To prove deviation from the standard of care, it must be shown that an anesthesiologist failed to use that amount of care and skill commonly exercised by other anesthesiologists with similar training and experience under the same circumstances. Physicians should not be found negligent if they elect to pursue one of several recognized courses of treatment, provided that a respectable number of physicians accept the course of treatment. In addition, reasonable medical judgment, even if in error, should not be considered negligence.

Most often, expert testimony establishes the applicable standard of care. A physician sued for medical malpractice has the right to a jury trial. Because jurors are usually unable to independently evaluate whether medical care is appropriate, physicians and experts explain the medical issues to assist the jury in reaching a conclusion. The expert witness generally has credentials and experience like those of the physician on trial and testifies as to whether the physician acted in accordance with the accepted standards of care. The stringency of the rules on expert qualifications varies by state.

The standard of care may also be established by a variety of other means, including medical treatises or guidelines written by professional organizations, policies of the hospital in which care was provided, and recommendations of drug and device manufacturers. Out-of-court statements by physicians (such as statements to the patient or other colleagues) or documents may constitute admissions against interest and may also be introduced as evidence of a deviation from the standard of care.

If a deviation from the standard of care can be proved, some type of injury must also be proved. Generally, at least some physical injury is necessary. Damages may be awarded to compensate for lost income, past or future medical expenses, and other less tangible elements of an injury, such as pain and suffering and embarrassment.

Finally, a patient must prove that the physician’s deviation from the standard of care proximately caused injury and that the injury was not caused by an underlying disease process. A physician’s negligent conduct may be a legal cause of harm if it is a substantial factor in bringing about the injury.

Types of claims against anesthesia personnel

The American Society of Anesthesiologists Closed Claims Project provides important information about the types of claims against anesthesia personnel. The Project, initiated in 1984, collects information from insurance companies about closed claims related to events leading to anesthesia-related injury. Numerous references have been published from the data about specific types of anesthetic injuries and resultant malpractice claims, giving a broad-based rather than an anecdotal picture. In general, the types of injuries that result in malpractice claims against anesthesia personnel include dental injury, nerve injury, and death or brain injury caused by either respiratory or cardiac events.

Lack of informed consent

Courts have long recognized that patients have a right to consent to medical treatment. (For more information on informed consent, see Chapter 236.) A patient may allege that no consent was given for a procedure and may seek damages for battery. More often, however, patients allege lack of informed consent or negligent nondisclosure. A physician has a legal obligation to advise the patient of certain risks and benefits associated with medical care, as well as available alternatives. Liability may be based on whether the physician failed to disclose a risk that should have been disclosed and whether that risk occurred.

The process

Medical malpractice lawsuits are formally commenced by filing or service of a summons and complaint. Notification of the claim may occur before formal commencement of a lawsuit and may come in the form of a letter or formal notice. Individuals as well as corporations may be named as defendants. The lawsuit must be commenced within the statute of limitations, a time period that varies by state. If the lawsuit continues, pretrial discovery occurs in the form of either depositions or written documentation. A relatively small percentage of cases are tried; most are either settled or dismissed. If a trial occurs, a jury is generally charged with determining the facts, and the presiding judge is responsible for determining the applicable law.

Managing legal risk

Practicing within accepted standards is the best defense against malpractice liability. Good communication among health care providers and with the patient is critical. Documentation is an essential part of a risk-management strategy and should be comprehensive, accurate, objective, and timely. Inadvertent admissions against interest should be avoided. The most common forms of admissions against interest are self-criticism or criticism of colleagues after an adverse outcome and speculation about the cause of an event before all of the facts are known. Guidelines and policies should be realistic and written to allow for emergencies and physician discretion.

Acknowledgment

The author and editors would like to thank Ann E. Decker, JD for her work on this chapter in previous editions.