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A "Malpractice" suit may be brought under several different theories. The most common form of malpractice litigation is based on negligence, treatment which falls below the established level of care. To prove negligence four criteria must be met: duty, breach, causation and damages. These criteria apply in most jurisdictions, but each jurisdiction is unique.
Duty is the notion that the doctor has a legal obligation to care for the patient. In general if the doctor treats a patient, duty is present. Sometimes, duty goes beyond the patient. For instance, a doctor's duty goes to an unborn child while he treats the mother. In some circumstances, the duty may extend to close family members as well (see case discussion). At other times, Good Samaritan laws protect the physician who volunteers services.
Breach of duty is the second component. This is usually understood as substandard care. The doctor did something he wasn't supposed to do, like give the wrong medicine or do the wrong operation. Or he overlooked an important item. Perhaps he didn't give a treatment or didn't do a test that was needed to meet the standard of care. In most cases this can only be determined by a medical expert.
Causation is the concept that the doctor's action or lack of action caused the damages. Causation in fact, foreseeability and proximate cause may be referred to when discussing causation. The "but for" test may be applied to causation in fact. The test is satisfied if, the injury would not have occurred but for the doctor's action. If the damages were foreseeable by a reasonable physician, then causation may be proven. Proximate cause may be shown if considering all other factors, the defendant's action is the main cause of the injury. Causation may be the most complex and difficult part of a case. Because, the law of causation varies between jurisdictions a superb medical expert and an excellent lawyer are essential.
Finally, damages must be documented. The patient has to suffer some pain, suffering, disability or death caused by the breach. Although damages may be emotional, physical or financial, they are expressed in terms of a monetary award. Punitive damages may be awarded in unusual cases where the defendant willfully caused harm. The dollar amount that can be recovered depends on the specific legal theory and jurisdiction the case is brought under.
Res ipsa loquitur (literally the thing speaks for itself) is another legal theory. In these cases there may be no direct proof of breach. Three conditions must be present:
- an injury which usually does not occur in the absence of negligence,
- the mechanism of injury is in complete control of the defendant, and
- the plaintiff did not contribute to the injury.
Other theories include intentional torts such as assault and battery, invasion of privacy, misrepresentation and violation of civil rights. Battery vs. negligence often hinges on informed consent; an adequate explanation of the treatment, its alternatives, risks and an opportunity to ask questions. Vicarious liability may allow health care providers other than the primary physician to be named as defendants. Finally, the laws of hospital liability may identify the hospital as one of the tortfeasors (one who commits a civil wrong).
Statutes of limitations are very important. All the criteria for a case may be present and based on the evidence a settlement may be in order. But if the statute of limitations has expired, the case can not be brought forward. The time limits for the same type of case vary from jurisdiction to jurisdiction. And in the same jurisdiction, the limits for different theories can differ, i.e. negligence vs. battery. So, time is of the essence.
Defense usually lies in refuting the required conditions. In a case of negligent care the defense will try to refute duty, breach, causation and damages. An outstanding medical expert is essential to this end. In Res ipsa loquitir, the three criteria mentioned above are attacked. Some other defense strategies may rely on the statute of limitations, Good Samaritan laws, or contributory negligence. Certain immunities, such as charitable, governmental or statutory, may apply as well. And occasionally limits on liability such as releases or arbitration provisions have been upheld.
In short, medical malpractice is a complicated field which can vary greatly from one jurisdiction to another. It requires a team of experts to insure the best outcome. The Medical Expert Inc. is the place where they all come together. Attorneys specializing in malpractice join medical experts to evaluate cases and determine which ones are meritorious.
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