Chapter 4: Health Law & Ethics
Christine Malone, EdD
Medical malpractice is the term used when a patient experiences an adverse outcome due to the treatment, or lack of treatment, received from their healthcare provider. The six most common forms of medical malpractice are misdiagnoses, delayed diagnoses, failure to treat, surgical injuries, birth injuries, and defective medical devices.
Medical malpractice falls under tort law. Tort law is a branch of civil law that deals with civil wrongs or injuries caused by one party to another, resulting in legal liability. It provides a legal framework for individuals to seek compensation for harm or damage caused by the wrongful actions of others. The purpose of tort law is to compensate the injured party and deter others from engaging in similar wrongful conduct.
Misdiagnoses are the most common types of medical malpractice in the United States. These events occur when the healthcare provider fails to properly diagnose a patient’s condition, leading to the patient sustaining a poor outcome, or even death. In order to prove misdiagnosis in a medical malpractice case, the patient/plaintiff must prove that a similarly skilled provider would not have made the same mistake. Many healthcare providers worry about this type of claim and therefore prescribe additional tests for patients. This is called the practice of defensive medicine.
A delayed diagnosis claim happens when a patient is correctly diagnosed, but not right away. The delay in diagnosis must cause an injury to the patient in order for this type of claim to be proven.
Failure to treat malpractice cases occur when a patient does not receive needed care. This type of case might occur when a provider fails to follow up with a patient, or does not provide a referral for needed care.
Surgical malpractice cases occur when the patient is injured before, during, or after a surgical procedure. Examples of these cases include wrong-site surgery, wrong-patient surgery, wrong surgical procedure, damage to nerves or tissues during surgery, performing unnecessary surgery, using non-sterilized surgical equipment, leaving surgical objects inside the patient, administering too much or too little anesthesia, and failing to follow up with needed care.
Birth injuries occur when an infant is injured during delivery. negligence that causes a birth injury may happen when the provider does not perform needed prenatal care or testing, uses assistive birthing devices incorrectly, does not perform a c-section when one is indicated, fails to monitor the baby after delivery, and anesthesia errors.
Defective medical device malpractice claims are those where the patient is injured due to a medical device or equipment that malfunctions or is defective in some way. In these claims, the patient will file the malpractice claim against the device manufacturer. In order to prove this type of claim, the patient must prove that the manufacturer knew, or should have known, about the defect.
In order for any type of malpractice claim to be proven, the patient must prove the four elements of malpractice. These consist of 1) the provider had a professional duty to care for the patient; 2) the provider breached that duty; 3) the patient sustained an injury due to that breach; and 4) the patient sustained damages as a result of that breach.
Defenses Against Malpractice Claims
The best defense against a medical malpractice claim in the medical record is documentation. Healthcare providers must accurately document care that was provided, as well as care that was not provided (in the event a patient refuses care). If the medical record is missing information, the assumption is that the care was not provided. A common phrase used in healthcare is, “If it is not charted, it was not done.”
Because the burden of proof in a malpractice claim lies with the patient/plaintiff, the provider needs only to prove that their actions were in line with the standard of care for the provider’s profession. Providers may assert that the patient was responsible, wholly or in part, for their own injury.
A common defense to medical malpractice lies in the assumption of risk. Prior to a surgical procedure, patients are asked to sign a consent form. In the consent form, possible outcomes are listed, including both common and rare outcomes. If a patient signs the consent form, they are assuming the risk for the procedure. In the event the patient experiences one of the outcomes listed in the consent form, they will not likely have grounds for a malpractice claim.
There are two types of consent for healthcare services. The first is expressed consent. This is when the patient either verbally or in writing consents to the procedure. The second type is implied consent. This is when the patient indicates consent nonverbally. An example of this would be a medical assistant telling the patient they need to have their blood pressure taken. When the patient presents their arm, this is implied consent to having their blood pressure taken.
No matter whether consent is expressed or implied, all patients must be informed of possible outcomes prior to the provider asking for consent. informed consent consists of letting the patient know the risks associated with the procedure, the risks associated with not having the procedure, and any alternatives the patient may choose. As an example, a provider recommends a patient have surgery for a back injury. The risks associated with that surgery must be explained (nerve damage, paralysis). The risks associated with not having the procedure must be explained (worsening pain). The alternatives must also be explained (physical therapy, acupuncture).
In some cases, a patient may sign out of a healthcare facility, against medical advice (AMA). When this occurs, the event must be properly documented. In the event the patient experiences a poor outcome due to leaving the facility AMA, the provider will not be liable.
Statute of Limitations and Discovery Rule
Each state has a statute of limitations law. This law limits the amount of time a victim has to file a malpractice claim. In Washington State, that amount of time is three years. A victim must file their claim within three years from the date of the injury. In some cases, the victim may not know they have experienced medical malpractice. An example of this is a patient who was left with a sponge inside their abdomen after surgery. The patient may experience pain but not find that the cause was the sponge left behind until after the statute of limitations ends. In a case like this, the discovery rule comes into play. The statute of limitations begins when the patient discovered, or should have discovered, the injury.
Good Samaritan Statutes
good samaritan statutes offer legal protection to individuals who provide emergency care to another when the person providing care is not working in an official healthcare capacity. There are four key elements to good samaritan statutes. The injured person must give permission, if possible; the care given must not be in a reckless manner; the person providing the care is not the one who caused the event; and the care was given because it was an emergency and trained professionals were not yet on the scene. The Good Samaritan Act is in place to encourage off-duty healthcare professionals to stop and provide emergent care, without fear of a malpractice lawsuit.
An example of the Good Samaritan Act includes a physician who is attending their child’s baseball game. During the game, one of the players is injured and the physician offers care. In the event the player has a bad outcome, they cannot sue the physician who provided that emergent care.
These statutes prevent the patient from suing the good samaritan if the care given causes additional injuries. As an example, if an individual provides life-saving CPR to a victim, the victim cannot sue the good samaritan if they sustain broken ribs. Good Samaritan statutes do not cover healthcare providers while they are on duty.
Attributions
- Figure 4.6: image released under the Pexels License
- Figure 4.7: image released under the Unsplash License
When a healthcare provider injures a patient in the course of providing care.
Laws that pertain to acts that lead to the injury or harm of another.
The use of excessive diagnostic testing as a way to reduce the risk of malpractice.
When a healthcare provider injures a patient in the course of providing care.
When the patient signs a consent document indicating they agree to having a procedure done.
When a patient consents to a procedure with body language.
When a provider gives the patient all information about the risks of a procedure, including the risks if they do not have the procedure, and any acceptable alternative treatments available.
The amount of time after the date of the malpractice injury that a patient can file a malpractice suit.
Once the statute of limitations ends, the patient has an extension of a period of time to file a malpractice claim if they did not recognize their injury within the statute of limitations.
State laws that protect an individual who provides life-saving care to another individual from being sued for injuries. Does not apply to healthcare professionals when they are on the job.