Overview – The Legal Requirements for a Malpractice Claim
In the United States, medical malpractice laws vary from state to state. Generally speaking, the laws require a plaintiff (the person filing the lawsuit, typically the patient) to establish four things: (1) that the clinician owed the patient a duty of care; (2) that the physician breached the standard of care; (3) that the breach was a proximate cause of the claimed injury; and (4) that the patient suffered damages as a result. The plaintiff must prove all elements by a preponderance of the evidence, which means that it is more likely than not that the plaintiff has proven his claim. In most cases, the duty of care is established easily, as a clinician who assumes the responsibility of treating a patient assumes a duty of care to that patient.
Typically, the “standard of care” is defined as what a reasonably prudent clinician in the same or similar circumstances would do. When a clinician does not act as a reasonably prudent clinician in the same or similar circumstances, that clinician has “breached” the standard of care and is considered negligent. There are various types of negligence claims that may arise (see Box 57.1 ). To establish the standard of care, the plaintiff generally must identify an expert (or experts) who will testify as to what the standard of care requires and how the defendant clinician breached it.
Examples of typical medical malpractice claims against clinicians include, but are not limited to:
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Failure to perform a procedure appropriately
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Failure to diagnose a disease leading to a delay in treatment
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Failure to obtain informed consent from the patient
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Failure to monitor or supervise another clinician
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Failure to respond in a timely manner to a complaint or test result
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Failure to obtain a consult that would result in different treatment
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Failure to monitor a patient appropriately
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Failure to refrain from performing a procedure due to risks
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Failure to admit a patient to the hospital
The experts are retained by the party making the claim, and costs to retain experts can be thousands of dollars through trial. An expert is not required when the alleged negligent act is the type that would not ordinarily occur in the absence of negligence (a claim known as a res ipsa loquitor or “the thing speaks for itself”). Examples include things like leaving a foreign body in a patient after surgery unintentionally, or operating on the wrong body part of the patient. In most cases, the experts must review the medical records at issue and render an opinion based on their education, knowledge, and experience. This can be supplemented with citations to scientific literature, textbooks, and treatises, as well as various policies and guidelines from various organizations, to strengthen the opinion. Before trial, often the parties try to challenge the qualifications, knowledge, and ability of the expert to testify.
In response, the defendant can (and usually does) retain experts in the same manner to testify that the clinician met the standard of care. Some states also permit the clinician to serve as his own “expert” to defend his care. It is typical that the experts on opposing sides will disagree as to what the standard of care is and whether the defendant breached it. Many of these malpractice cases therefore become “battles of the experts” where a jury must decide which expert is more credible and believable.
Even if a jury accepts that the clinician breached the standard of care, the plaintiff must also prove that the clinician’s breach of the standard of care was a “proximate cause” of the claimed injury. Different jurisdictions apply different definitions of proximate cause, but the two main standards for evaluating proximate cause are the “but for” test and the “substantial factor” test. In states that apply the “but for” test, a plaintiff must prove that the claimed injury would not have occurred “but for” the defendant’s alleged misconduct; if the claimed injury would have occurred even without the alleged misconduct, the plaintiff cannot establish proximate cause. The “substantial factor” test, by contrast, only requires that the plaintiff establish that the defendant’s conduct was a “substantial factor” causing the claimed harm. As with the standard of care, the proximate cause element must be supported by an appropriate expert.
Finally, the plaintiff must prove that his damages were caused by the clinician’s negligence. This may not require expert testimony, depending on the type of damages claimed. In most cases, a plaintiff can claim damages for pain and suffering, past and future lost wages, past and future medical expenses, and other costs necessitated by the harm. In cases where a clinician’s conduct is so egregious that it rises to the level of recklessness or intentional misconduct, a plaintiff may also claim punitive damages. Those damages may not be covered by the clinician’s insurance carrier.
To get to trial can take many years. In that intervening period, the attorneys representing the plaintiff and the clinician will engage in discovery, which involves amassing records, taking depositions of the parties and witnesses, and addressing potential legal issues. During that time, and before trial, most cases will be dismissed or will settle, either through direct negotiations or alternative dispute resolution (e.g., mediation or arbitration). If there is an adverse finding against a physician, there is usually a report to the National Practitioner Data Bank (NPDB). This is a confidential data repository to improve healthcare quality by preventing clinicians and other practitioners from moving between states without disclosing their prior harm to patients and others.
There are various types of claims that are raised against surgeons. For example, in a 2012 case, a surgeon removed a patient’s tumor in her right parotid gland. During the surgery, the surgeon injured the facial nerve but repaired it.
The patient sued the doctor and claimed that the surgeon breached the standard of care by failing to identify and protect the facial nerve before and during surgery. As a result of the alleged negligence, the patient claimed that she suffered an impairment to her facial nerve. At trial, while the patient’s expert testified that the defendant breached the standard of care and caused the claimed injuries, the defendant’s expert testified that the transection of the facial nerve was unavoidable in this complex case and was not a breach of the standard of care. The jury concluded that the defendant did not breach the standard of care and found in the surgeon’s favor.
Types and Frequency of Claims From an Otorhinolaryngology Perspective
Between 2006 and 2016, there was a total of 109,672 medical negligence claims that led to a settlement or finding of liability against a physician. That number (as well as the amounts paid on behalf of physicians) has been declining since 2003. Over the last few years, otorhinolaryngology claims tend to be among the most frequent claims where payments are made among medical specialties (excluding dental claims). From 1991 through 2015, the average amount paid on a claim involving otorhinolaryngology has increased to over US$400,000, with one claim of $11.9 million.
Recent data shows that more than half of the claims made against Otolaryngology-Head and Neck Surgery (56%) were dropped, withdrawn, or dismissed, and 7% of those claims that went to trial resulted in a defense verdict. The average cost to fight these claims was about $38,000 as of 2015. About 34% of claims were resolved through settlement, with only 1% of claims resulting in a plaintiff’s verdict. Nonetheless, a recent study addressing claims of medical malpractice with regard to salivary gland procedures showed that, of those cases that proceeded to trial and were reported in legal databases, the majority (58%) resulted in verdicts for the plaintiffs, with the average verdict or settlement of nearly $1 million. The allegations related to claims of injury resulting from unnecessary surgical procedures or improper performance of procedures, such as parotidectomies, with most claims of injuries to the parotid gland or duct (62%). The submandibular gland or duct was involved in 35% of cases. The facial nerve was involved in 38% of cases. An additional report describes 18% of lawsuits involving facial nerve injury involve parotid neoplasm surgery with 25% of lawsuits involving non-neoplastic diseases of the parotid or other benign conditions of the head and neck. The majority of claims will result in no finding of liability against the salivary gland surgeon, thus with no resulting report to the NPDB.
Defending against a medical malpractice claim can have significant economic costs for attorneys and experts, not to mention the potential costs in the event of an adverse outcome at trial.
Tips to Mitigate the Risk of a Lawsuit or Adverse Outcome
When a patient feels that a physician is too busy to talk or address any potential issue, that can lead to a feeling of anger and a desire to sue. In many cases, simply spending time with the patient, acknowledging the situation, and speaking with the patient and family can avoid a claim.
It is important to use a complete informed consent process. This should be more than simply the patient signing a standard consent form. It should include a notation in the chart or operative report that the physician discussed the specific risks, benefits, and alternatives of the procedure with the patient, that the patient understood those, and that the patient agreed to proceed forward. This is particularly helpful to rebut a later claim by the patient that they were not told of the specific risks, such as facial nerve weakness or paralysis, by the surgeon, as these claims are made in a significant number of cases. It is also important following a procedure to create a timely, accurate, and complete operative procedure note. In claims involving facial nerve paralysis and parotid gland surgery, the use of intraoperative facial nerve monitoring has been shown to decrease the likelihood of a malpractice claim. Parotid surgeons performing more than 10 parotidectomies per year were 35% less likely to have an inadvertent injury to the facial nerve.
In the era of electronic medical records (EMRs) with templates and drop-down boxes, it is helpful if a physician documents via “free text” or other methods the patient’s actual treatment plan, rather than relying simply on a click-down list or other similar template. These should be done in a timely manner so that the records reflect a contemporaneous assessment of the history, findings, and treatment plan. Likewise, it is important for the clinician and office staff to document the relevant interactions with the patients, including outer-office events. These include e-mails, phone calls, text messages, and any other non-office interaction with the patient related to the care at issue.
If a patient threatens a claim, or if the clinician has a reasonable expectation that a claim or lawsuit may be brought, it is never too early to alert the insurance company or legal risk department of the hospital/office. Often, these early reports permit the office to safeguard potential evidence, interview witnesses when their recollection of the event is fresh, and potentially protect various materials from production if litigation were to occur.
Because the best defense is a good offense, it is important to be proactive and be prepared to not only try to avoid a claim but, in the event one is filed, have the necessary tools to defend oneself.
