Class 9 – MEDICAL MALPRACTICE ISSUES

With hospitalist issues and referrals to specialists issues and timing of care issues, there are all kinds of new medical practice concerns for practicing physicians beyond the usual medical malpractice allegations of the past.  In the past, typical medical malpractice cases involved patient  care issues in which it is basically alleged that the patient did not receive the proper medical care.  Often the complaint by patients against hospitals and physicians was, and still is, based on negligence.  The traditional formula for the elements necessary to a negligence cause of action include the following:

(1) Existence of Legal Duty from Defendant to Plaintiff – This is a duty, which is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

(2) Breach of Duty – A failure to conform to the standard required. This is commonly called breach of duty. These two elements, a duty and a failure to conform to the standard required, go to make up what the courts usually have called negligence, but the term is frequently applied to the second alone. Accordingly, a defendant may be negligent but not liable because he was under no duty to the plaintiff not to be.

(3) Proximate Cause – A reasonably close causal connection between the conduct and the resulting injury. This is commonly called “proximate cause” or sometimes “legal cause”. It involves a combination of two elements – causation in fact and legal limitation.

(4) Damages – Actual loss or damage resulting to the interests of another. The action for negligence requires the pleading and proof of damages as an essential part of the plaintiff’s case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual damage has occurred. If defendant’s risk-creating negligent conduct threatens but does not harm plaintiff, plaintiff may be able to get an injunction and stop the activity as a “nuisance”.

Now, along with typical medical malpractice complaints there can be additional complaints tied to some managed care issue.  For example, delay of care due to utilization management techniques, or allegations that financial considerations such as capitation such that the patient alleges that the physician does not render proper medical care because the physician has a conflict of interest by having a financial stake involved.