Medical Malpractice

Stethoscope and Gavel


It is likely that no other type of civil litigation has done more to improve the life style of American citizens than medical malpractice lawsuits. Health care in the United States is among the best in the world, and while doctors don’t like to admit it, this is in large part due to the scrutiny placed upon the medical field by medical malpractice lawyers pursuing medical malpractice legal claims against doctors, dentists, chiropractors and hospitals.

The law of medical malpractice is an outgrowth of the general body of negligence law. It is the law applicable to all lawsuits by attorneys against medical professionals (doctors, nurses, nurse practitioners, dentists, hospitals, physical therapists, pharmacists, physician assistants, plastic surgeons, psychiatrists, ob gyns, chiropractors, podiatrists) alleging negligence in the rendition of medical services to their patients. At common law, the duty of due care by medical professionals was deemed to have arisen out of the contractual obligations which are created when a patient contracts with a health care provider to perform health care services. Even though some jurisdictions still retain common law contractual concepts in dealing with medical malpractice suits, medical malpractice is now generally considered by most attorneys, judges and legal scholars to be an independent action in tort, rather than in contract.

Medical Malpractice

In the same sense that the ordinary body of negligence law defines negligence as the doing or the failure to do something that a person of ordinary prudence would or would not do under the same or similar circumstances, the law of medical malpractice defines negligent medical conduct as the doing or the failure to do something that a reasonably prudent doctor or other health care professional in that field would or would not do under the same or similar circumstances. In negligence law the fictional “reasonable man” standard has been created to evaluate the conduct of the defendant alleged to have been negligent. In medical malpractice law the fictional “reasonably prudent health care provider” standard has been created. In both instances the terminology of the attorneys revolves around the issue of whether the doctor, hospital or other health care provider was “negligent.” Some attorneys note that the “reasonable man” standard is objective, in the sense that it is a standard applicable to all human beings, whereas the “reasonably prudent health care provider” is more subjective, in that it allows the medical profession to define the standard by which its conduct will be judged. These attorneys point out that that standard may fluctuate over periods of time as short as months, depending on available technology. Other attorneys respond that the law holds even medical professionals to certain minimum requirements of care, and evidence presented by a defense lawyer in a medical malpractice lawsuit that few people in a given medical field exercise caution in an area where caution should be exercised would not preclude a finding in the same law suit that a doctor, chiropractor or other health care provider was negligent. In medical malpractice cases the plaintiff’s medical malpractice lawyer must establish through expert testimony the standard of care required of doctors or other health care providers in the field of the defendant and that the defendant breached or failed to adhere to that standard of care, thereby causing the plaintiff’s injury. A negative result in medical treatment in and of itself does not mean that the doctor, hospital or other health care provider committed malpractice. Medical treatment carries with it no guarantee of a successful outcome. In many medical procedures there are risks which cannot be avoided even if the doctor exercises the greatest caution. These are called unavoidable risks. On the other hand, risks which are unavoidable even when the greatest care has been exercised, may in a particular case, be shown by an attorney to have resulted from lack of due care by the doctor or other health care professional.


The standard legal defenses of contributory negligence and assumption of risk are generally considered to be applicable in medical malpractice cases, although by the very nature of the superior knowledge of the physician or health care professional over that of the patient, there are probably less instances where these defenses can be effectively utilized by the insurance company’s malpractice lawyers.

In terms of factual defenses, lawyers for doctors, hospitals and other health care professionals raise a number of arguments in opposing medical malpractice claims, several of which have little merit, but all of which create significant obstacles to the plaintiff’s medical malpractice lawyer. Some of these arguments include:

* The decision of the doctor or other health care provider was a judgment call, within accepted medical standards.

* The treatment by the doctor or other health care provider was within an acceptable alternative form of treatment.

* Physicians or other health care providers are people. No one is perfect. They are fallible and make mistakes, and making an innocent and well- intentioned mistake of judgment is within accepted standards.

Although this argument is sometimes raised, it is without merit. The law’s fiction of a “reasonable physician” standard assumes that mistakes will be made, and they are included within the meaning of negligence. By analogy, drivers are not perfect and sometimes are inattentive, but that doesn’t mean that a driver who takes his/her eyes off the road and causes an accident is not guilty of negligence.

* The absence of any notation in the medical record specifically showing the error demonstrates that the plaintiff’s malpractice attorney cannot prove what happened.

Rarely is the mistake of a physician explicitly revealed in the physician’s medical record. Circumstantial evidence is a legitimate way to prove medical negligence, particularly where one would not expect to find an explicit confession of negligence in the record. Despite the obviousness of this point, attorneys often argue that there is an absence of evidence of negligence.

* The plaintiff’s ultimate outcome in terms of medical difficulties cannot be shown by the attorneys to have been affected by the malpractice.

* This is the way I and all the other doctors I know in my field do it.

This assertion is often interjected by the testifying physician on the questioning of the defense attorney to contradict the plaintiff’s expert’s definition of the standard of care. The medical malpractice lawyer cannot produce every physician to testify to the way things are done, and a medical malpractice attorney must rely on the testimony of his or her expert as well as trial court rulings to combat this assertion.

Proximate Causation

Just as in negligence law, medical malpractice attorneys must show that the damages were proximately caused by the malpractice of which the doctor or other health care practitioner is accused. Unlike a simple accident case, most plaintiffs are already injured or ill at the time they are victimized by medical malpractice. Therefore, medical malpractice attorneys must, through the use of their experts, separate out the damages that would have resulted even if the plaintiff had received appropriate medical care from the damages that actually resulted with the addition of inappropriate medical care. It is often difficult for the victim, who is afflicted with serious medical problems, to appreciate the requirement of the law that his malpractice attorney prove that the malpractice worsened or failed to stem a worsening of his/her medical condition. In addition, causation must be proved to a reasonable degree of medical probability, and mere possibility is generally not sufficient. If the Plaintiff’s attorney is only able to demonstrate that a given outcome might (as opposed to “probably would”) have been avoided by a particular treatment, there is a likelihood of a ruling by the judge in that lawsuit that the Plaintiff’s attorney has not met the burden of proof.

Informed Consent

The doctrine of informed consent is a unique area of malpractice litigation. It does not follow strict negligence principles, in that the plaintiff’s medical malpractice lawyer need not show that the health care provider was negligent in failing to obtain his/her consent to treatment. In general, the law grants to the conscious patient the right to choose whether to obtain medical treatment and requires that a health care practitioner provide the patient with accurate information as to diagnosis, the nature of the proposed treatment, any risks associated with that treatment, alternatives to that treatment along with their associated risks, and the risk of no treatment. The failure to provide that information is, in and of itself, a violation of the patient’s rights. Informed consent does not involve a question of the standard of care within a particular medical field, and there is no requirement that the medical malpractice lawyer produce expert testimony that reasonably prudent health care providers within that field provide that information to their patients. However, medical malpractice attorneys may, nevertheless, be required to produce expert testimony to show the nature of the risks and the alternatives to treatment.

A plaintiff’s medical malpractice lawyer pursuing a medical malpractice lawsuit must show not only that the Plaintiff’s rights were violated by a health care provider’s failure to provide this information, but also that a reasonable person in the position of the Plaintiff, without the benefit of hindsight, would or would not have chosen the treatment at issue had accurate information been given. It is important to note that this last requirement will not necessarily be satisfied by testimony in the law suit from the Plaintiff that he or she would or would not have chosen the treatment in dispute. The fact finder in the lawsuit, whether it be a judge or a jury, is free to find, despite testimony from the plaintiff to the contrary, that a reasonable person would have chosen to decline or accept the treatment in dispute. For this reason, many violations of informed consent will not give rise to good malpractice claims. If the risks are low (despite the fact that the plaintiff, in hindsight, is now known to have fallen prey to that low risk) and the treatment is reasonably necessary or desirable, the fact finder may well conclude that even if the plaintiff had been properly informed of the risks, the same decision would have been made by a reasonable patient in the plaintiff’s position.

It is important to distinguish between the consent form signed by many patients, the doctrine of informed consent, and the concept of medical malpractice. The fact that a consent form was signed is evidence of informed consent, but it is not conclusive. Evidence may be introduced in the lawsuit by the attorneys as to the contents of the form and the time and circumstances of the signing. Furthermore, the fact that a consent form mentions a particular risk or the fact that a physician advises the patient of a particular risk, does not mean that the patient has consented to the physician rendering negligent medical care and thereby committing medical malpractice in bringing about the danger of which the patient was warned. For instance, the fact that a patient is advised that there is a danger of nerves or vessels being severed during a surgical procedure does not prevent medical malpractice attorneys from suing for negligence. The consent of the patient operates only for those injuries which were not avoidable even with the exercise of appropriate care. In such a case, the medical malpractice attorney would be permitted to show negligence in the performance of the procedure, despite the fact that the Plaintiff was warned of the danger.

Medical Experts

The requirement that medical malpractice attorneys present expert testimony expressing an opinion on the standard of care within a particular medical field and on the defendant’s breach of that standard of care provides one of the most formidable obstacles to plaintiffs in pursuing malpractice claims. Within the medical profession there is what has been termed a “conspiracy of silence” among physicians and others in the medical fields on providing testimony in malpractice claims. It is rare for local physicians to testify against a colleague, even in large communities where it is unlikely they know each other. Ostracism within the medical community against those physicians with the courage to testify long ago resulted in an informal code of conduct prohibiting physicians from testifying for plaintiffs in malpractice claims. This forces medical malpractice attorneys to seek experts from other communities, often far away from the location of the trial. The limited number of doctors, dentists and other health care professionals willing to testify for the Plaintiff’s attorneys, even from distant locations, results in high per hour expert witness fees, often between $400 and $500 per hour. The medical malpractice lawyers for the defendant doctor, on the other hand, usually have an unlimited pool of expert witnesses from the defendant’s own colleagues in the community, making it easy to provide a defense, even when the malpractice is relatively clear. Insurance companies, bolstered by a medical profession that believes it should be immune from civil suits, while at the same time refusing to adequately police itself, are often willing to fight to the finish on these claims. Settlements, if they occur, rarely occur before the trial is imminent. The effect of this is that the expense of expert witnesses and the cost of discovery in medical malpractice claims often results in expenses in excess of $25,000 to the plaintiff. It is easy to see why only the most egregious instances of malpractice causing only the most serious injuries result in viable malpractice litigation. The hoax perpetrated by the insurance industry to the effect that the courts are filled with frivolous and petty medical malpractice claims is one of the most fraudulent and malicious propaganda campaigns ever foisted upon the public. It is simply not economically feasible for any medical malpractice attorney to prosecute any but the most meritorious malpractice claims with the most seriously victimized plaintiffs.