Negligence and Malpractice basics

Tort: A civil wrong

3 kinds of torts:

Intentional – assault and battery, invasion of privacy...

Unintentional = negligence (Malpractice is professional negligence)

Strict Liability – “liability w/o fault”

Torts

1. Burden of proof on accusor (unless res ipsa loquitur applied – “the thing speaks for itself” – shifts burden of proof to defendant to prove other causes)

2. Must be harm done “no harm, no foul”

Negligence

Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm

(Intentional torts deal with conduct which has a reasonable certainty of causing harm)

4 Elements in Negligence; each of which must be proven by the Plaintiff (the one suing) with preponderance of evidence:

1. Duty of Care

2. Breach of Duty

3. Proximate cause

4. Causing Harm

Duty of Care Considerations

”Reasonable person” (fictitious person with like age, intelligence, experience, under like circumstances)

Reasonable person affected by:

1. Children (unless engaging in adult activity)

Considerations, continued:

2. Physical disability (“reasonable blind person”)

3. Mental deficiency – no allowance – held to same standard as someone NOT mentally deficient (discuss why)

4. Superior skill/knowledge (like a chiropractor or a CT); specialty also considered

5. Emergencies

• Violation of statute (in some states, violation is per se evidence of negligence)

• Duty of affirmative action – some professions (lifeguard), caregiver situations

Defenses to Negligence charge:

1. Contributory – if injured person has contributed, is prevented from recovering damages

2. Comparative – in most states, reduce award by amount of plaintiff contrib.

3. Comparative fault/Joint & Several liability

4. Assumption of risk (through informed consent)

4 elements of Negligence

1. Legal duty to act – duty of care – should have known better

2. Breach of duty – “reasonable person rule” applied

3. Proximate (direct) cause – “but for” this person’s actions...

4. Damage must be linked to above...

Malpractice as Professional Negligence

Plaintiff must prove ALL - with preponderance of evidence):

1. Dr./Pt. Relationship established by contract (all elements present)

2. Creates duty for Dr. to act (professionally)

3. Dr. breaches that duty, which is

4. Proximate cause of

5. Harm to patient

When is dr/pt relationship established?

--not statement of opinion

--not just listening to recital of patient symptoms

--not money (can exist in pro bono situations)

Dr./Patient relationship established contractually –

Patient agrees to pay for services and Dr. agrees to render service

Offer – Acceptance – Mutual Assent + legality + consideration + competence = enforceable contract

If staff person listens to patient symptoms, advice, gives sympathy, gives opportunity to make an appointment, caller might reasonably interpret such as message as reliable professional opinion, creating professional reliance

(remember detrimental reliance)

Don’t create impression of acceptance – implied contract

Don’t commit until all the information is in

“Can you treat me, doc?”“Sure, we’ll get you fixed up.”

“Can the doctor take away my pain? “Sure – she’s really great!”

Malpractice:

“any professional misconduct, lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct”

(Black’s Law Dictionary – 1979)

Standard of care

“degree of skill and learning as generally measured by the skill and learning possessed by other doctors in good standing practicing in the same specialty and who hold the same national board certification”

Standard of Care measured by expert witness testimony –

What would another “reasonable” chiropractor do in these circumstances?

Some things to think about relating to malpractice:

2 elements to cases – objective (injury suffered) and subjective (patient attitude, feelings)

Malpractice as reverse class action (one person against ALL chiropractors)

28% of malpractice lawsuits involve mistakes/omissions by staff

Attorneys say that “the personality of the doctor in relating to her or his patient often plays a paramount role in stimulating an injured patient to sue”

EXPECTATIONS of perfection in today’s society affect the penchant for lawsuits

Abandonment – interruption of current and required health care

1. Duty to care for patient

2. Unilateral withdrawal (patient does not agree)

3. Pt in need of continued care

4. Injury to patient

Situations/ actions by the doctor or staff that might be considered as abandonment:

Dismissal Retirement Vacation Moving away from the areaGiving adequate instructionsAngry patient discontinues care

To avoid abandonment charge, letter of dismissal to patient must include:

1. Clear statement of reasons for dismissal , documentation

2. Reasonable opportunity/time to get another doc; possible list

Informed Consent

Simple assent – assume will be adjusted

Informed consent – combination of:

1. Legal duty of briefing patient

2. Forewarning of risks

3. Acceptance of risks by patient

Informed Consent is constituted, NOT by existence of a form, but by UNDERSTANDING by the patient

Don’t count on Memory – yours or the patient’s

Existence of a form does not assume that informed consent exists

When in doubt, document

Relationship of IC to Malpractice:

Informed consent is not a protection against malpractice.

Informed consent only used to establish assumption of risk – applies to contractual agreement

Can be sued solely on the basis of no assumption of risk, even if no malpractice exists

What must be discussed for Informed Consent?

Nature of procedure, and associated material risks, with probabilities

Availability and nature of other options, with risks and probabilities

Risk of remaining untreated

When is consent invalid?

+When given by person not legally authorized to do so

+When fraudulent (withholding of material fact)

+If the service is illegal (no license?)

+If in technical terms, not understandable by average person

“removal of the uterus will result in permanent and irreversible reproductive sterility” (patient was women who spoke broken English, needed interpreter)

Note: exceeding consent is breach of contract

Blanket consent – consent by parents for caregiver – authorizes treatment when necessary

Oral consent by phone by parent – document and get paper signed

** Note importance of establishing who is consensual parent in divorce/separation cases

Why bother with consent forms?

It’s wrong to treat without consent

Many patients know their rights

No consent, no assumption of risk

How many patients have been lost because of properly communicated consent form?

Dialogue may cultivate more reasonable expectations

Record keeping and Malpractice:

Excellent records are the best defense against a malpractice charge.

Standard of care also applies to records. (What kind of records would a “reasonable” DC keep?)

Doctor’s responsibility with regard to records:

Safety

Accuracy

Confidentiality

Currency (up to date)

Who owns records?

Doctor for the benefit of the patient

Who can see records?

Patient

Courts without patient consent

No one else without patient consent – express or implied

Can these people see records without express consent of pt.?

(NEVER assume anything; contact patient!)

Patient insurance company – consent already given

Family members – only legal guardian

Patient attorney – consent already given, but verify with pt.

Other attorneys - no

Subpoena ducas tecum – subpoena of court for documents

*you may charge for copying costs, costs of document delivery to court

When court asks for records, you may deliver copies, unless explicitly requested otherwise by the court (Federal Rules of Evidence)

How long must patient records be kept?

Forever, unless

2 years after patient has died

(Statute of limitations on malpractice is 2 years after “awareness”)

Litigation

Litigation – process of a lawsuit

“Filing lawsuits has replaced baseball as our national pastime”

Steps in a typical malpractice suit:

Preliminary:

1. Person has problem, calls attorney

2. Attorney does preliminary investigation to determine value of case

The Lawsuit:

1. Complaint – summons

2. Defendant contacts insurance co. who contacts attorney - responds to complaint

3. Notice of appearance – acknowledge receipt of summons

Pre-trial

1. Motions to judge

2. Discovery – depositions, interrogatories, physical exams, requests for documents

3. Pretrial conferences to attempt to settle

The Trial

1. Selection of jury – voir dire

2. Opening statements

3. Plaintiff case presented

4. Defendant case and cross-exam.

5. Closing arguments

6. Instructions to jury

The verdict – 2 parts

1. Judgment

2. If against the defendant, the penalty

After the trial, the appeals process

After an “exposure event” (something happens that could potentially cause a lawsuit)

Avoid expressions like

“Thank goodness we have insurance”“I’m sorry. I shouldn’t have...”“Sue us if you’re not happy.”“Let us help with your bills.”

When a suit is filed

Your first knowledge might be a “friendly” call from an attorney

– notify insurer immediately - don’t discuss with caller- discuss with entire staff- prepare for concerns of other patients- don’t touch those records!0

Testifying/ giving depositions:

Keep answers brief, factual, to the point

Never volunteer information

Expect attorney “tricks”

Be relaxed, professional, assured

Don’t argue

Speak clearly, forcefully

Be consistent with answers