Medical Negligence

Medical negligence is often confused for medical malpractice, when in fact, negligence is only one aspect of a meritorious medical malpractice claim. In terms of a definition, the most commonly used in legal cases is as follows:

In terms of medical malpractice tort law, medical negligence is usually the basis for a lawsuit demanding compensation for an injury caused a patient by a doctor or other medical professional. While negligence on it's own does not merit a medical malpractice claim, when the negligence results in undue injury to a patient, a lawsuit may be brought demanding compensation for all associated damages.

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Medical Negligence in Relation to Medical Malpractice Law

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1. Negligence in General Tort Law
2. Medical Negligence Explained
3. Accepted Medical Standard of Care
4. Types and Examples of Medical Negligence
5. Proving Medical Negligence
6. Can the Patient Contribute to Medical Negligence?
   
7. How Medical Negligence Becomes Medical Malpractice

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Negligence in General Tort Law

Negligence is a basis for a wide variety of legal claims in the law of torts. It's best to think of tort law as civil injury law. A common example of tort law, and a familiar way to explain how negligence works, is to think of drivers on the road, rules of the road and car accidents. In a car accident, it is usually established that one person caused the accident, and that person is responsible to pay for all the damages incurred to the other parties involved.

The Driver of a Car can be Negligent

It can be said, that the person at fault is liable to pay for the damages, due to his or her negligence while driving. If a driver fails to stop at a red light, then that driver is said to be negligent. If the failure to stop at the red light causes an accident, then the negligent driver is responsible to pay for any damage caused to other drivers as a result of running the red light.

Drivers Have a Duty to Other Drivers

In tort law, it is assumed that anyone driving a car on public roadways has a duty to drive in such a way as to not cause harm or damage to other drivers. It is from this duty that laws governing speed limits, stop signs, red lights and all other rules of the road are determined and meant to keep drivers safe. Anyone who deviates from these rules, is said to be negligent, in a legal sense.

Similarly, doctors and other medical professional also have a duty to their patients. Many people have heard the saying, "do no harm", and this is exactly the duty that doctors have to their patients.

Medical Negligence Explained

Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a way that deviates from the accepted medical standard of care (more on that later). In keeping with our car accident analogy, if a doctor breaks the rules regarding how to treat a patient, and does something that is "against the rules", then that doctor has failed to perform is duty, and is said to be negligent.

Medical Negligence Does Not Imply Injury

While medical negligence does not always result in injury to the patient, it is still an act of negligence. Similar to a driver running a red light and no accident occurring, the driver still broke the law, and is still negligent. Of course, drivers on the road are subject to criminal laws, and can still get a ticket for running the red light. But in terms of civil tort law, no one has been harmed so they are "off the hook".

A Doctors Duty to a Patient

Just like drivers on the road have a duty to drive safely and not cause harm to other drivers, doctors have a duty to their patients, to treat them according to the accepted medical standard of care, and avoid causing them any undue harm. Doctors, when they are granted the ability to treat patients, take the hippocratic oath, which is essentially a promise that they will treat their patients to the best of their ability, and to the accepted medical standard of care, so as to do no harm to their patients. When a patient allows a doctor to use a scalpel to cut him open, it's easy to see why doctors are held to such a high degree of medical performance, because poor performance can cost someone their life.

When a doctor or other medical professional breaks this oath, or duty, they are negligent in legal terms. When determining if a doctor performed negligently, the court and an expert medical witness will compare their performance to the accepted medical standard of care.

Accepted Medical Standard of Care

The accepted medical standard of care can be thought of as the sum of medical knowledge that has been accumulated over hundreds of years of medical and scientific study and discovery, and how that knowledge has become the tools with which doctors can treat patients and make them well when ill or injured. Analogous to the rules to which a driver must adhere when operating a car on public roads, the medical standard of care provides a sort of playbook, which outlines rules for treating patients under different circumstances, and a medical professional is required to adhere to this playbook to ensure the safety of his or her patients.

How Does a Doctor Know the Accepted Medical Standard?

Over the course of hundreds of years, medical professional have treated hundreds of thousands of patients for every different illness and injury imaginable. In all these cases, treatment, and it's effectiveness has been extensively documented. All of this knowledge is integrated into the study of medicine, and incorporated into the curriculum of every accredited medical school. Obviously, no one doctor can possibly know how to treat every illness and injury, which is why there are so many sub-specialties in medicine, and such extensive documentation of medical knowledge.

Additionally, if ever encountering a patient for whom the doctor does not know the proper treatment, he or she is required to seek an answer from documentation, or better yet, a professional opinion from another, more qualified, doctor. Ignorance is no defense to medical negligence.

There is No Fine Line

Medicine is an exact science, but in practice, often times human judgment and emergency situations can create a situation where there is no exact action stipulated by medical standards. It is assumed that, for any given situation, all doctors should react in more or less the same way, given the level of education and training they have all received. In practice, the only way to establish medical negligence is by seeking a professional opinion form another, or several, qualified medical experts.

Types and Examples of Medical Negligence

Medical negligence can occur in an infinite number of ways, but many instances of medical negligence can be grouped into one of the following categories:

• Misdiagnosis
• Failure to Diagnose in Time
• Surgical Error
• Failure to Follow Up With Treatment
• Failure to Treat in a Timely Manner
• Anesthesia Error
• Medication or Prescription Error
  

Misdiagnosis

One of the most difficult aspects of a doctors job, is taking a set of symptoms and diagnosing the illness or injury causing them. Often times, several different illnesses may result in similar symptoms, but will require very different treatment. For this reason, it is important that, if a doctor has doubt regarding a diagnosis, further testing should be done.

One of the most common and dangerous forms of medical misdiagnosis relates to heart attack diagnosis, or coronary artery disease. CAD is a condition that may not show symptoms for many years, yet can ultimately result in a massive heart attack and death. Often times, the first sign of an impending heart attack will be chest pains, which can be misdiagnosed as strained muscles or something similar.

Failure to Timely Diagnose

Often times, an illness or injury becomes more and more difficult to treat as time goes on. It is often critical that a doctor diagnose an illness or injury in an appropriate amount of time, so that treatment can be administered, and the patient made well.

A common example is a case of cancer. If cancer is diagnosed early on, then the patient stands a much greater chance at recovery than if it is allowed to spread. Diagnosis of cancer can be done early on if the doctor is given a chance to examine the patient, such as at a routine check-up, or a visit to the hospital for some potentially related symptoms. If the doctor does see the patient, and fails to diagnose potential symptoms of cancer, then the patient may be sent home and the cancer will be allowed to spread. Whether or not this is negligent treatment depends on the circumstances of the case.

Surgical Error

Surgical errors are a common form of medical negligence, and usually involve a doctor accidentally cutting or cauterizing an internal organ or tube, which can be defined as a negligent act if careful performance could have prevented it.

Common injuries resulting from surgical errors have to do with foreign fluids, such as urine, bile or feces, entering the abdominal cavity through a cut unintentionally made during a surgical procedure. This often leads to severe infections and sepsis, or septic shock which can lead to a patients' death.

Another form of surgical error is called a wrong site surgery, and is exactly what it sounds like. There have been cases reported of patients needing an arm, leg, hand, finger or other appendage amputated, and a mistake prior to surgery results in the wrong appendage being amputated. Imagine, a patient who would have otherwise lived a normal life with one prosthetic leg, is now permanently bound to a wheelchair.

Failure to Follow Up with Treatment

This is a broad form of medical negligence that involves a doctor prescribing treatment, then failing to monitor the progress and adjust or cease treatment accordingly.

An example of failure to follow up with treatment could be a man with a high blood iron content being prescribed weekly blood drawings to reduce the iron levels in the blood. Constantly drawing blood can have a severe impact on general immune system function. If the doctor prescribes the blood drawings, but fails to monitor the progress, a nurse may continue the weekly blood drawings as ordered, but cause severe damage to the patients' immune system which can ultimately result in death.

Failure to Treat in a Timely Manner

Once a doctor makes a diagnosis regarding a patients' illness or injury, treatment should be administered is such a time frame that gives the patient the best possible chance at recovery. If a doctor fails to act quickly enough to treat the patient, then possible negligence has occurred. Often times, this form of medical negligence takes place in an emergency room or urgent care situation, where timeliness of treatment can mean the difference between life and death.

Birth injury cases also often result from a failure to treat in a timely manner. In cases of fetal distress, hospital staff have precious few moments to act, and perform a c-section to remove a baby, before permanent damage or injury occurs to the fetal brain. There have been numerous cases of a failure to perform a c-section in time, resulting in permanent brain injury, or cerebral palsy in a new born baby.

Anesthesia Error

In any surgical procedure, anesthesia poses a high risk in and of itself, which is why anesthesiologists practice such a narrowly focused medicine. Anesthesia errors can lead to severe brain injury, organ failures, and even death.

We think of anesthesia a simply, "putting someone to sleep", when in reality, there is a fine line between a safe, unconscious state and a potentially permanent or long term coma. In some cases, anesthesia errors can lead to death via asphyxia or heart failure.

In many cases, medication administered to a patient in the days and weeks prior to a surgical procedure can affect the drugs used for anesthesia. It is critical that an anesthesiologist examine the patients medical records prior to deciding on the type, mixture or "cocktail" to use to anesthetize the patient for surgery. Any failure to do so can result in serious injury to the patient.

Medication or Prescription Error

Medication and prescription negligence can generally occur in one of two ways: 1. A doctor prescribes a patient a drug or medication that causes injury due to a dosage error, misdiagnosis of symptoms or failure to check for allergic reaction, or; 2. A prescription is filled incorrectly by a pharmacist, which can lead to injury to the patient. One case places liability for medical negligence on the prescribing doctor, and the other on the pharmacist.

Obviously, this is not a comprehensive list of types of medical negligence, but does encompass most of the types that usually result in injury and a case of medical malpractice.

Proving Medical Negligence

The only legal way to establish that medical negligence has occurred is to hire an expert medical witness, usually a medical doctor operating in a similar capacity as the one allegedly negligent, to examine the case and make an expert opinion.

Medical Expert and the Standard of Care

The expert medical witness will take into account all of the details of the case, and apply to it the accepted medical standard of care. Using this context, the medical expert will outline the possible treatment options, and which should have been applied. If the medical expert finds that the allegedly negligent doctor did not perform his or her duty to the accepted medical standard, then negligence has legally been established.

While this is a sound approach in theory, in practice it becomes very complicated. In a medical malpractice case, this is one of the most difficult aspects to prove in court.

How it Works in Court

In order to establish medical negligence in a court of law, all of the hospital staff members will be deposed during the discovery of the case, and asked questions in order to establish the facts of the case. Additional evidence will be drawn from all associated hospital or clinic records regarding the patients admittance and treatment, including follow up records for longer-term treatment cases.

All of this evidence will be reviewed by a panel of experts, and ultimately, the expert medical witness will appear in court to testify to the negligent treatment before a jury.

Can the Patient Contribute to Medical Negligence?

In most cases of medical treatment, a doctor or medical professional will order their patient to participate in the treatment by taking certain medications, eating, or not eating certain foods, avoiding strenuous work or exercise, or taking care of treated areas during recovery from an injury. What happens if a patient doesn't do as ordered? Is he or she also liable for any injury suffered as a result?

Comparative Negligence

Medical malpractice laws vary by state, and one of the main differences is in how patient negligence is applied to compensation for a medical injury. Comparative negligence, as it's called in tort law, is the idea that if a patient is 50% responsible for her injury, then she may only recover 50% of the associated damages in an injury claim.

Take, for example, a case where a doctor orders a patient with a broken pelvic bone to spend three months without walking or applying pressure to the injured leg. Additionally, the doctor failed to set the broken bone properly, leaving the patient with a bowed leg. The patient then re-breaks the leg by walking on it after two and a half months. If the patient had not walked on it, as instructed by the doctor he would not have broken it. However, if the doctor had set the bone properly, it also would not have broken. If it is established that the patient is 40% at fault for the injury, then the doctor would be liable for only 60% of the associated costs of the injury.

Negligence Laws Vary by State

The way patient and doctor negligence is handled varies from state to state, and each has modified the idea of comparative negligence. In most cases of medical negligence though, the fault is 100% on the doctor or medical professional, as they are held to a higher standard and cases of contributory negligence are rare. Most commonly, the defendant in a medical negligence claim will attempt to use contributory negligence as a defense to the suit.

How Medical Negligence Becomes Medical Malpractice

In short, medical negligence becomes medical malpractice when the doctors negligent treatment causes undue injury to her patient. This one sentence implies two additional legal concepts required for a medical malpractice case: Injury and Causation.

Tort Law and the Injury Requirement

In order for a case of medical negligence to become medical malpractice, tort law requires that an injury be present. Because tort law is really civil injury law, it requires some injury for which to seek compensation. The amount of compensation demanded by a medical malpractice lawsuit is directly related to the extent of the injury, or damages.

Damages in a medical malpractice claim generally include all the medical costs associated with the injury, any lost income due to an inability to work, future lost earnings caused my a medical injury or disability, as well as non-economic damages such as pain and suffering.

Causation: The Link Between Negligence and Injury

The final step in establishing a medical malpractice claim from an act of medical negligence requires establishing a causal relationship between the negligent medical treatment and the injury to the patient. This is a legal concept known as causation, and is another very difficult aspect to prove in a medical malpractice case.

Establishing causation in a medical malpractice suit, similar to establishing negligence, requires a medical expert witness to show if and how the negligent medical treatment directly caused an injury to the patient. Further, it must be shown that, had the negligence not taken place, the injury would have been avoided.

For More Information on Medical Negligence and Medical Lawsuits, see the following articles:

Can I Sue my Doctor?
What is Medical Malpractice?