Chapter 9 : A Primer on Medical Malpractice

1. Chapter 9: A Primer on Medical Malpractice

2. Malpractice – What is it? • Error - behavioral matter • Misperception • Mistake • Omission • Substitution • Accident - unplanned event • Malpractice - negligence

3. 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

4. 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

5. 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.

6. 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

7. Sources of Professional Standards Government statutes and regulations Professional society standards Voluntary accrediting agency standards Administrative policies and rule of the facility

8. Theories of Liability Informed consent Strict liability Vicarious liability Res ipsa loquitur

9. 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

10. Hospital Liability for Malpractice • Respondeat superior • Ostensible agency • Staff Privileges • Corporate Negligence • Contributory Negligence

11. Other Liability Theories Intentional tort Assault and battery Libel Slander Invasion of Privacy

12. Types of Damages Compensatory damage Awards for pain and suffering Punitive damages

13. 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.

14. Common Malpractice Allegations Surgery/post-op complications Failure to diagnose cancer Surgery/inadvertent act Improper treatment (birth related) Failure to diagnose fracture or dislocation

15. Most Expensive Settlements Improper treatment (birth related) Failure to diagnose hemorrhage Failure to diagnose myocardial infarction Failure to diagnose infection Failure to diagnose cancer

16. 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

17. 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