Medical malpractice: a review of issues for providers

Medical malpractice: a review of issues

for providers

Marsha Ryan, JD, MDSchool of Law, School of Medicine, Southern Illinois University, 120 North Illinois Street,

Carbondale, IL 62901, USA

The following is a general overview of the law of medical negligence. Medical

malpractice actions are essentially typical tort actions in which patients (and

sometimes their family members) who feel as though they have received

inadequate or erroneous medical care sue the health care providers responsible

for delivering that medical care. The patient then becomes the plaintiff in the suit

and the health care provider becomes the defendant. Each hires a lawyer. Unlike

routine tort cases, however, each side in a medical malpractice action typically

must also hire an expert witness. Because professional negligence cases are more

sophisticated and, thus, less likely to be instinctively understood by lay jurors,

courts generally require experts to prove the plaintiff’s case and to refute those

charges on behalf of the defendant.

In addition to rather simple medical negligence suits, there are some less classic

causes of action that can attend the original negligence action. These causes of

action include fear of future injury, loss of chance of survival, negligent infliction

of emotional distress, and others that will be discussed in brief. Creation of the

physician-patient relationship, defenses, records and confidentiality, concealment,

and institutional liability will also be discussed in an attempt to introduce the

hematologist/oncologist to the practical implications of the rules of law.

Standard of care/expert witness qualifications

Defining the standard of care

To prove a medical negligence action, a plaintiff bears the burden, through his

or her expert witness, of proving four essential elements [1]:

1. The defendant owed the plaintiff a duty to provide appropriate medial care.

0889-8588/02/$ – see front matter D 2002, Elsevier Science (USA). All rights reserved.

PII: S0889 -8588 (02 )00061 -8

E-mail address: [email protected]

Hematol Oncol Clin N Am

16 (2002) 1331–1350

2. The defendant breached that duty by failing to provide minimally

competent care.

3. The plaintiff was harmed.

4. The harm to the plaintiff was caused by the defendant’s failure to provide

that care.

The defendant’s duty arises from a contract that is implied between physician

and patient. When a patient asks to be treated by a physician by appearing in the

office, and the physician agrees to treat the patient by performing diagnostic and

therapeutic maneuvers, a physician-patient relationship is created. Because these

contractual relationships are very rarely written, they are most often implied by

the conduct of the parties. The patient makes an appointment, arrives at the office,

and is seen by the physician who orders tests or suggests treatment and, by this

series of contacts, a contractual relationship is implied. Once the relationship is

begun, the physician then has the duty to provide care that meets certain

minimum standards. Failure to do so is considered a breach of that duty and, if

harm results to the patient from that breach, negligence may be proved. The

physician is then liable, and monetary damages will be owed.

The duty that is required of the physician is to provide care that comports

with the ‘‘standard of care,’’ defined as that medical care that would be provided

by a reasonable physician in the same or similar circumstances [2]; that is, a

physician must provide minimally competent care that does not fall below that of

other reasonable physicians faced with patients with similar problems [3]. Again,

because of the complexity of the medical facts, an expert witness must define

that standard of care and, on behalf of the plaintiff, point out the portions of the

patient’s diagnostic or therapeutic treatment that fell below that standard.

Further, the expert must then define the harm that resulted and tie the harm to

the failure to meet the standard of care. On behalf of the defendant, another

expert must define the standard of care as he or she sees it and point out the fact

that the defendant met the standard or that the harm that resulted was not related

to any breach.

Expert witnesses

Typically, expert witnesses are required by the court to assist the jury in

understanding the medical facts of the patient’s care and, in most instances, these

cases cannot be successfully brought to trial without an expert. The court

generally requires an expert to explain the sophisticated medical facts and all

four required elements of the negligence action to the jury. Whether or not a

particular expert will be deemed acceptable to the court varies from jurisdiction to

jurisdiction [4]. Generally, the expert must be familiar with the type of medical

care at the heart of the suit [5,6]. Sometimes, the expert must be trained in or

practice in the same specialty as the defendant physician; however, for example, a

neurologist was allowed to testify against a cardiac surgeon about the need for

postoperative visits to the bedside because the neurologist was routinely engaged

M. Ryan / Hematol Oncol Clin N Am 16 (2002) 1331–13501332

in matters of postoperative care despite his lack of specific cardiac surgical

training [7]. On the other hand, a pharmacist was not allowed to act as an expert

against an orthopedist in the matter of antibiotic selection for clinical use because

the pharmacist dispensed but did not prescribe drugs [8].

In some jurisdictions, the expert must practice in an area of the country that is

the same as or at least similar to that of the defendant. In other jurisdictions, an

expert will apply a national standard of care and will be allowed to come from

any part of the country and from cities of any size. The older rule that required the

expert to be a local physician has generally been eroded, in part, because medical

knowledge is more uniform and universally available. Internet access, national

meetings, national exams, and board certifications have tended to standardize

care throughout the country. In addition, local physicians are often reluctant to

testify against colleagues whom they know, with whom they work, or from whom

they receive coverage or referrals. To broaden the pool of potential experts, courts

typically have expanded the rule from a ‘‘strict locality’’ requirement to a

‘‘similar locality’’ requirement to a ‘‘national’’ standard. In some jurisdictions,

although matters of professional judgment are examined according to a national

standard on the assumption that medical judgment is fairly uniform nationwide,

matters of resources and facilities are examined according to local or similar-

locality standards. Thus, allowances may be made for differences between locales

in terms of equipment.

As noted, the judge decides whether an expert is eligible to appear and looks

at such factors as the expert’s time spent in teaching or practicing medicine. The

decision is a very important one because disqualification may deprive a party of

its only expert and may result in an automatic judgment for the other party to

the suit.

The fact that two members of the medical profession can sit on opposite

sides of a case and offer diametrically opposed opinions on one set of facts

leads some skeptics to see medical malpractice cases as ‘‘battles of the experts’’

and to see the experts themselves as hired guns. There is no doubt that some

experts are unscrupulous mercenaries, but there are studies in which ordinary

medical professionals, given identical sets of medical facts, differ markedly

when asked whether the physician decision makers met the accepted standard of

care. In addition, physicians may be as susceptible to ‘‘sympathetic’’ influences

as any layperson and may find a greater deviation from the professional

standard of care when the facts are changed to suggest poorer outcomes for

the patient.

It is apparent that in theory, the profession sets its own standards of

performance. An expert physician, after all, defines the criteria on behalf of the

profession at large. In rare circumstances, however, the court will set the standard

of care for the profession when, in the court’s opinion, the entire profession lags

behind. When, for example, ophthalmologists as a group did not routinely test

people under the age of 40 years for glaucoma, the court applied its own risk/

benefit analysis and concluded that reasonable prudence required testing of

patients below the age of 40 years. The court reasoned that the risk of blindness

M. Ryan / Hematol Oncol Clin N Am 16 (2002) 1331–1350 1333

was easily reduced by requiring application of an inexpensive, noninvasive,

quick, risk-free examination [9]. This judicial setting of the standard of care is

rare, and most courts clearly defer to the profession.

Cases that may require no expert witness

In some instances, there is no need for an expert to set the standard of care at

all. ‘‘Res ipsa loquitor’’ (RIL) is one such doctrine that requires no expert in order

to make a case of negligence [10]. The typical RIL case is one in which a patient

does not contribute to his or her own injury, the defendant is the one who controls

the instrument of harm, and the injury is one that does not occur ordinarily in the

absence of some act of negligence [11]. In cases in which a patient cannot name a

specific defendant or a specific act of negligence, the court allows the burden of

proof to shift from the plaintiff to the defendant, who then must prove ‘‘not me.’’

Thus, the plaintiff generally no longer needs an expert to prove his or her case.

The textbook case is the anesthetized patient who undergoes an appendectomy

and awakens to find he or she has an ulnar nerve injury, presumably from

positioning of the arm. The plaintiff, not responsible for his or her own injury,

would have an impossible burden of proof under traditional rules of law because

he or she cannot name a specific act of negligence or a specific actor. RIL,

however, allows a shift in the burden of proof to the defendants (surgeon,

anesthesiologist, operating room crew, recovery room staff, transport personnel,

and/or floor nursing personnel) to show their lack of culpability [12]. Rebuttal by

defendants may be difficult—the legal equivalent of proving a negative. Indeed,

some jurisdictions will not allow RIL claims in medical malpractice cases at all,

assuming that the information is too complex for lay juries to draw their own

conclusions. In addition, RIL may be a poor doctrine for application when the

injury of which the plaintiff complains is one that occurs, without negligence,

with some well-known statistical likelihood.

Other cases in which the plaintiff does not need an expert may include those in

which the defendant makes an admission of negligence at trial or in deposition

[13]. Words like ‘‘excessive’’ or ‘‘should not have happened’’ or ‘‘misidentified’’

may suffice in some courts to constitute an admission of liability, whereas other

phrases like ‘‘I made the wrong diagnosis’’ or ‘‘I did an inadequate dissection’’

might fail in other courts to rise to the level of an admission. In the latter cases,

courts have concluded that those statements alone failed to prove duty/breach/

harm/causation, as required in a negligence action.

Still other cases in which an expert may not be required are those in which the

information is deemed sufficiently uncomplicated that a lay jury can understand

the facts—the so-called ‘‘common knowledge’’ exception to the need for an

expert. Informed-consent cases (discussed elsewhere) are often such common-

knowledge cases. Particularly egregious errors, such as retained sponges after

abdominal surgery, may also be common-knowledge cases [14]. Because no

expert is needed to explain complex facts to a lay jury, the plaintiff’s case may be

heard without an expert at all.


Physician-patient relationship/abandonment/duty to parties other

than the patient

Defining the relationship between physician and patient

As noted, most contracts between patients and physicians are implied (ie,

unwritten) and are recognized from a course of conduct in which a patient seeks

care and a physician begins diagnostic or therapeutic maneuvers. The amount and

quality of contact required to create a relationship is not absolutely predicable

[15]. Typically, the mere making of an appointment is insufficient, as is a

curbside chat between colleagues, one of whom has never seen the patient [16].

Prior to the time at which care is undertaken, physicians generally may agree to

treat or refuse to treat patients as they choose. As a rule, there is no duty to accept

a patient, even when the patient is obviously urgently in need of attention. There

are some circumstances, however, where a pre-existing duty requires that a

physician assume the care of a patient. Such pre-existing duty can arise from a

previous relationship with the patient, particularly if the prior relationship

involved treatment of the same illness and was not terribly remote in time. In

addition, a physician’s own contractual relationship with an insurer may obligate

him or her to treat one of the company’s insured. A physician’s agreement with a

hospital to provide emergency coverage on a call list also will create a duty to

respond and, thereafter, to exercise that degree of skill so as to comply with the

standard of care.

A physician’s name on the call list also may give rise by federal mandate to a

duty to treat patients in urgent need of medical care who arrive in the emergency

room. The Emergency Medical Treatment and Active Labor Act [17] is a federal

statute that prevents the ‘‘dumping’’ of emergency patients or women in active

labor on another facility by transferring them while they are unstable or without

the receiving hospital’s agreement to receive them. These guidelines were

promulgated to prevent hospitals from transferring problematic or uninsured

patients to other institutions. Lately, this duty to stabilize and transfer only with

approval of the receiving hospital has been expanded to require the receiving

hospital or physician on call at the receiving hospital to accept the transfer only

when the patient’s illness falls within the institution’s and on-call physician’s area

of expertise. The receiving hospital’s protection from abuse, then, becomes the

mirror-image responsibility of the transferring hospital to treat the patient and not

‘‘dump’’ him or her [17].

The question of whether or not a physician-patient relationship exists is of

vital importance. Without that contractual element, there is no duty and, without a

duty, there is no potential for breach; therefore, there is no liability. When a

relationship does begin, there is a duty to treat the patient non-negligently and,

further, there is a duty to treat until the relationship is severed by mutual consent

or until the immediate need for care has passed. If the physician wishes to

terminate the relationship unilaterally, then he or she must do so only after giving

the patient notice of his or her intent to withdraw in sufficient time for the patient


to replace him or her with a willing substitute [18]. Failure to provide services

until no longer needed or failure to provide reasonable notice to allow substi-

tution could result in liability for abandonment, and action could lie either in torts

for medical negligence or in contracts for breach.

Duties to third parties

In some cases, a physician may owe a duty of care to parties with whom he or

she has no contract whatsoever. A duty to third parties may arise from the

relationship that the physician does have with a patient when harm that arises

from within that relationship is visited on a foreseeable member of the patient’s

family or even a member of the general public [19]. Generally, as noted, there

must be some privity of contract before a duty to exercise due care is imposed. In

medical negligence cases, however, some courts extend a duty to third parties

because of the ‘‘special relationship’’ between physician and patient and because

of the gravity of harm that can befall ‘‘predictable’’ nonparties. Thus, a daughter

successfully sued a physician who failed to warn her mother that the mother’s

medullary thyroid carcinoma put the daughter at statistically greater risk of

developing thyroid cancer herself. The daughter, despite lack of privity, was

owed a duty of care by the physician who reasonably could foresee that members

of the family might be at risk for developing a genetically transmissible disease

[20]. Generally, the physician must warn the patient who then has the burden to

inform his or her relatives. Most courts, in most circumstances, do not require

physicians to warn the family themselves. Problematic, then, is the situation in

which the physician can be relatively certain that the patient may not or will not

inform his or her family, despite the patient’s having been warned. In those

instances, in fact, it may actually be a breach of confidence to bypass the patient

and inform the family directly without the patient’s express consent to divulge the

specifics of his or her illness.

Situations in which communicable diseases are misdiagnosed and then con-

tracted by foreseeable family members may also give rise to third-party actions.

Thus, when a mother’s meningitis is misdiagnosed as a simple upper respiratory

infection, she may be discharged and her son thus exposed. If he then contracts the

illness and dies, the physician who misdiagnosed the mother’s illness and, thus,

allowed unrestricted contact with her son may be liable to that third-party son for

his injuries. In a similar case, a physician failed to tell a patient of her HIV status

when she was diagnosed at the age of 12. The patient later took a lover who then

converted to HIV positivity. That third-party fiance then had a cause of action

against the physician despite lack of privity and lack of specific foreseeability [21].

After all, he was not known to the patient at the time the physician actually failed to

warn. The court, however, concluded that at some point in the course of the

patient’s life, some foreseeable male companion would appear, even though he was

unknown and unnamed in specific at the time of the breach.

Some jurisdictions have expanded the notion of third-party liability beyond the

realm of genetic or contagious diseases to that of environmental exposure. For


example, failure to diagnose a patient’s carbon monoxide exposure led to exposure

of others in the household to whom the physician was deemed to owe a duty. They

were, the court concluded, foreseeable victims of the physician’s failure to

diagnose the patient and, thus, warn the patient about the environmental risks at

home. Similarly, a patient’s undiagnosed Rocky Mountain Spotted Tick Fever led

to a physician’s liability when the patient’s wife, a foreseeable third party, was

exposed to tick bites and also contracted the disease [22].

An array of psychiatric cases deals with the necessity to warn potential victims

of a patient’s violent tendencies. The lead case in this area is Tarasoff versus

Regents of the University of California [23] in which a psychiatrist was obligated

to warn the girlfriend of a patient who had declared his intention to harm her.

Indeed, it was insufficient to warn the police of the threat, as the physician had

done. Courts in cases such as this find that the duty to warn arises out of the

‘‘special relationship’’ between the physician and patient, and the duty then

extends to foreseeable third parties. The court also reasons that the benefit of

protecting against harm outweighs the risk of divulging a patient’s confidence, a

matter discussed more fully later in this article.

There is yet another collection of cases that involve third-party liability in

which patients are medicated and are not warned to avoid subsequent behavior

such as driving a car [24]. Some courts have greater difficulty assigning liability

to defendant physicians when the exact nature of the harm and, more particularly,

the exact identity of a potential third party (as a member of the general public) is

unknown. The court may be dissuaded by the simple conceptual difficulty of

notifying the public at large or at least owing each of those unnamed potential

defendants a duty of protection from harm.

Derivative theories of liability

Negligent infliction of emotional distress

Often attendant to the standard medical malpractice suit are several derivative

causes of action: loss of consortium, loss of society, and other causes of action for

which family members may recover damages. In addition to these usual tort

claims on behalf of spouses and children, there are others that may be added that

will increase the measure of the plaintiff’s damages and those of his or her family.

If a physician’s behavior while treating a patient is deemed outrageous and causes

significant mental anguish when the conduct is viewed by the patient’s immediate

family, then damages may be due to the family under a claim of emotional

distress. The kind of conduct that suffices to be considered outrageous is a

subjective matter and is left to the discretion of the jury. Generally, the actions

must be so egregious as to be beyond the bounds of civility and decency [25].

When family members witness the patient’s distress, the court reasons that the

physician must be able to foresee that family will attend the patient and see the

patient’s suffering. The relationship between physician and patient then gives rise


to a duty to protect foreseeable third parties (here, family members) from

additional distress based on a physician’s atrocious conduct. Not all jurisdictions

favor the action because claims of distress are fairly easily made and appeal to the

sympathy of the jury. In addition, there is no need for expert witness testimony

because lay jurors can decide what conduct is sufficiently outrageous to require

recompense. To discourage fraudulent claims, some courts require physical signs

of mental distress such as headaches or sleeplessness in order to weed out those

with illegitimate claims [26]. Other jurisdictions simply will not allow the claim

at all or will only allow a claim when the family member fears for his or her own

safety and is in the ‘‘zone of danger.’’ In addition, courts that find this action

distasteful point to the fact that one affirmative act or one act of omission is rarely

enough to give rise to a claim of negligent infliction of emotional distress. Rather,

it becomes a collection of events that together, rise to the level of outrageous

conduct; demeaning comments, yelling in the hallways, callous behavior in the

face of a vulnerable patient, and complaints about having to attend the patient

may not suffice as individual actions but collectively, become outrageous [27].

The question, of course, is how much is enough? Some courts are reluctant to let

juries decide. Others are more willing, suggesting that physicians must be aware

of a patient’s vulnerable state and that of his or her family and, therefore, must act

to protect those foreseeable onlookers by curtailing his or her own rude behavior.

Novel theories of liability

As noted earlier, four elements must be proved in order for a plaintiff to make

his or her case of medical negligence: duty, breach, harm, and causation. The

latter two have recently been under assault in the form of two theories that erode

the requirements that the plaintiff suffer harm and that the defendant’s breach of

duty cause that harm.

Fear of future injury

‘‘Fear of yet-unrealized harm’’ in some jurisdictions is a compensable injury.

In such cases, a patient may recover for harm to which he or she has been made

more susceptible by the physician’s negligence but that may never occur. For

example, a patient underwent a dilatation and curettage that resulted in an

unintended uterine perforation. Her claims of fear of future bowel obstruction,

estimated at 8% to 16%, was deemed compensable, and damages were calculated

based on that statistical chance. Thus, she was given 8% to 16% of the award that

would have been due if the obstruction actually occurred. The court reasoned that

either the plaintiff or defendant was about to be given a windfall, and it was

forced to choose between protecting the defendant (who would no longer be

liable if the harm actually arose when the statue of limitations had passed) and

compensating the plaintiff (who would be paid even if the feared complication

never arose). The court assigned the windfall to the totally innocent plaintiff,


rather than the defendant tortfeasor who was already proved negligent in

perforating the patient’s uterus [28].

More recent cases, similar in nature, have dealt with the fear of contracting

AIDS. Some courts allow compensation for the fear, even if real exposure to the

HIV virus was undocumented. Examples include a needle-stick injury with a

needle whose history of use was uncertain, and a patient’s fear of conversion

when he or she discovered he or she had been operated on by an HIV-positive

surgeon, despite the fact that there were no breaks in technique. Courts that allow

recovery for fear of contracting the illness will allow compensation for the period

of time until the fear is truly extinguished, typically after months or years of

negative HIV testing. Other courts, by contrast, will not allow compensation if

there is no real proven exposure to the virus or if the risk of conversion is very

small, suggesting, therefore, that the fear itself is unreasonable [29,30].

The requirement, therefore, that the plaintiff actually be harmed has been

eroded in some jurisdictions, and a statistical likelihood of harm, sometimes

infinitesimally small, has been substituted.

Loss of chance of survival

‘‘Loss of chance of survival’’ is a second novel theory, one that weakens the

need to prove a causal relationship between the patient’s harm and the physician’s

negligent behavior, the fourth of the standard negligence criteria. The doctrine is

discussed more fully elsewhere in this issue; however, in brief, it allows

compensation for a reduction in the statistical likelihood of survival in patients

in whom survival is already reduced by virtue of their underlying illness. In some

jurisdictions, the courts require that the chance of survival prior to the physician’s

negligence be greater than 50%. Thus, the patient would have been more likely

than not to survive except for the actions of the physician. This requirement

maintains the ‘‘causation’’ element that connects the physician’s behavior to the

harm suffered (here, death). Other jurisdictions allow any reduction in survival,

whatever the statistics associated with the original illness, to be compensated

[31]. This practice may create a situation in which it is more likely than not that

the disease itself would have caused the death of the patient, and it becomes less

probable that the physician actually caused the harm. The typical case, particu-

larly pertinent to the field of hematology-oncology, is one of cancer misdiagnosis

or mistreatment in which the disease carries a fixed mortality that is further

reduced by a physician’s delay in diagnosis or erroneous treatment. For example,

survival statistics for a particular patient’s lung cancer of 39% were reduced to

25% after a delay in diagnosis. The court allowed damages of roughly 14% of the

value of the patient’s life in toto [32]. The disquieting news for defendants is that

there was a less-than-even chance of survival even without any negligence on the

part of the physician, and ‘‘possibility’’ of causation now replaced the more

traditional ‘‘probability’’ of causation. Even patients with minimal chances of

recovery from their underlying malignancies can be compensated for loss of that

chance [33]. Plaintiffs, of course, contend that the loss of even a small statistical


chance is still a significant loss to the patient—one worthy of compensation. In

addition, plaintiffs contend that the doctrine helps to prevent neglect or aban-

donment of patients for whom the original outlook for survival is bleak.

Defenses

Typically, a defendant to a suit must mount a defense to the plaintiff’s claims

of negligence by hiring an expert of his or her own to define the standard of care

as he or she sees it, refute the concept that the defendant breached that duty of

care, or deny the relationship of any breach of which the defendant might have

been guilty to the harm suffered by the plaintiff. In addition, there are affirmative

defenses that a defendant may mount.

Good Samaritan acts

Good Samaritan acts exist in nearly every state and are designed to protect

volunteers who help victims in an emergency. The theory behind such laws is that

involvement of volunteer professionals in response to an emergency is valuable

to society, and shielding such volunteers from liability, except for willful or

wanton acts of negligence, encourages physicians to participate. There is usually

no mandated affirmative duty to respond, so removing the threat of liability for

simple negligence, in theory, encourages physicians to intervene despite a lack of

any obligation to do so. This protection has traditionally applied to intervention

outside the hospital, for example, on the highway or in the concert hall. It has

now been expanded in many jurisdictions to include intervention in the hospital

itself [34]. For example, a passing obstetrician called into a patient’s room to

assist with an emergency delivery may be protected from liability for negligence

if he or she owes no duty to the patient to intervene and if he or she sends no bill

[35]. He or she will not be shielded if the patient is his or hers, if he or she serves

the hospital as the obstetrician on call for emergencies, if he or she bills the

patient, or if his or her acts of negligence are wanton (in reckless disregard for the

patient’s safety) or willful (inflicting intentional harm).

The definition of emergency varies from state of state. Most will accept

situations that seem emergent but later turn out to be more routine [36]. Most, in

addition, will accept urgent circumstances in which patient welfare is promoted

by intervention, as when a surgeon is called urgently to intervene in an operative

procedure in an anesthetized, open patient with an unexpected finding. Other

courts refuse to extend Good Samaritan protection to hospital premises at all,

assuming that the same constraints do not apply as if services were rendered on

the highway. Further, these courts conclude that the patient expects a physician

who answers an emergent call in the hospital to do so non-negligently, supplied

as he or she is with equipment and personnel to assist [37].

It is universally accepted that when a volunteer physician undertakes the

medical rescue of a patient, he or she may not abandon the patient until the


emergency has ended or until the patient’s care has been duly transferred to

another caretaker. This assures that when a rescuer arrives, discouraging others

from volunteering, the Good Samaritan does not summarily abandon the patient

to his or her fate.

Statutes of limitations

Statutes of limitations exist in every state and may act as a defense to a suit

that is filed too late to comply with the statutory time limits. Statutes of

limitations are designed to make certain that cases are brought in a timely

fashion lest evidence grow stale or be lost [38]. Parties and witnesses may move,

forget, or die. Paperwork may be lost. Insurance companies may be unable to

predict losses or calculate needed reserves. Thus, the statutes require cases to be

filed within a fixed period of time. The time set is arbitrary and, when it has

passed, the plaintiff can no longer gain access to the court, even if he or she

misses the deadline by a day. Typically, the deadline is 2 to 4 years; the time at

which the countdown begins varies according to the jurisdiction. In some

jurisdictions, the clock begins to run at the time of injury. In others, it starts

when the patient knows or, in the exercise of reasonable diligence, should know

that harm has occurred as the result of a physician’s actions. In still other

jurisdictions, the patient must also realize that the physician’s actions were

negligent and, at that point only, the statute begins to run.

The rules for minors typically have allowed the child to reach majority before

the statute of limitations begins to run. The plaintiff then has the statutory time

limit after reaching majority (eg, 2 more years) to sue. In some jurisdictions, the

statutory limit for minors has been modified to a shorter term (eg, 8 years from

the date of injury) on the theory that modern-day contact with school nurses,

health departments, or school-physical examiners will improve the family’s

chances of notification [39]. When aware of the injury, the family can then file

within that shortened time on behalf of the minor.

There are some exceptional circumstances in which the statute of limitations

does not begin to run until discovery of the harm, no matter how long that may

take. These circumstances include retained foreign bodies (eg, a sponge left after

abdominal surgery) or a pregnancy after sterilization. These two situations are

exempted because the evidence does not grow stale. In addition, fraudulent

concealment on the part of the physician, designed to prevent discovery of his or

her error, will toll the running of the statute until discovery of the fraud, and the

statute may then run 5 years from the date the patient learns the truth.

Because statues of limitations bar a plaintiff’s access to the courtroom, there

have been many creative attempts to extend the limits by convincing the court

that the clock had not begun to run at the time of injury or at the time of discovery

but at some later time, thus allowing the plaintiff to claim he or she has filed prior

to the deadline. A continuing course of treatment with the defendant physician

may toll the running of the statute until the treatment actually ceases. The theory

in support of this doctrine is that the physician’s ongoing participation in the


patient’s care creates a situation in which the patient is unlikely to question the

physician’s advice or seek legal counsel regarding suit against that physician [40].

It may be hard to predict what kind of ongoing contact suffices to create a

continuing course of treatment. A phone call, a visit to the physician’s partner

within the same clinic, a visit to the same physician but for a different illness, or

five refills of a prescription for birth control pills may all be considered ongoing

treatment and, thus, prolong the time in which a plaintiff may file. A radiologist

who misreads a film on which a neurologist continues to rely in formulating

ongoing treatment decisions in some jurisdictions may still be subject to suit for

as long as the neurologist relies on the reading. The radiologist is thus deemed a

‘‘constructive participant’’ in the patient’s care, and the statute of limitations is

tolled, not by activity on the part of the negligent radiologist but by the actions of

a subsequent treating physician who depends on the radiologist’s report [41].

In a new line of cases, an ongoing failure of a physician to warn a patient

represents a continuing course of conduct tolling the running of the statute. An

example might be a pathologist who reads a specimen as benign but harbors

doubts about the true nature of the lesion. His or her continuing failure to warn

the patient may constitute an ongoing course of conduct that prolongs the time

during which he or she may be sued until the patient discovers the error [42].

Another example might be a blood bank’s failure to warn a patient that transfused

units of blood have not been tested for the HIV virus. Despite the fact there is

never any further contact, the persistent failure to warn can be considered a

continuing course of conduct, tolling the statute’s running.

The statute of limitations attendant to a medical negligence action may not

apply at all if the patient dies, even years after the negligence actually occurs. A

delayed diagnosis of cancer, for example, that leads to the patient’s death may

give rise to a wrongful death action, the statute of limitations for which begins to

run not at the time of the misdiagnosis or its discovery by the patient but at the

time of the patient’s death.

Comparative negligence

Another affirmative defense to a malpractice action is the defendant’s claim of

comparative negligence on the part of the plaintiff. That is, the patient may have

contributed to his or her own injuries by virtue of his or her own negligent

actions. In the past, it was common to relieve the physician of all liability if the

patient was more than 50% responsible for his or her own harm because courts

reasoned that it was more probable that the patient caused the injury than that the

physician did so. Requiring greater certainty of causation than mere possibility,

the courts declined to assign liability to the physician at all. In many jurisdictions

in the modern era, however, a patient’s contribution to his or her own harm does

not relieve the physician of liability altogether, but acts to reduce the measure of

damages by the percentage for which the patient is responsible [43]. Thus, a

patient who bears responsibility for 60% of the wrongdoing will receive 60% less

than the total monetary value of his or her claim.


Pretreatment illnesses such as pre-existing diabetes or heart disease that the

patient fails to manage well prior to the defendant’s involvement will not be

considered contribution by the patient [44]. Bad habits simply create the patient

profile that then is presented to the physician for evaluation and, at that point, the

physician, taking the patient as he or she finds him or her, must exercise that care

and skill that an ordinarily prudent physician would exercise faced with a similar

patient [45]. This makes intuitive sense because patients present for medical care

with a variety of self-induced ills such as cigarette use, poor dietary habits, and

sedentary life style. Physicians, routinely faced with such patients, must then treat

them appropriately. Although physicians may blame patients for creating an

otherwise avoidable illness, courts will not allow that to relieve the physician of

his or her duty to treat that illness appropriately. On the other hand, a patient’s

post-treatment habits may indeed reduce the measure of his or her damages when

he or she fails, for example, to monitor his or her blood sugars, take his or her

prescription drugs, or modify his or her diet, as suggested by the physician [46].

That failure in the post-treatment period may be construed to represent compar-

ative negligence and may be used as a defense to offset the monetary worth of the

physician’s own negligence.

Exculpatory clauses

In an attempt to avoid litigation from the outset of a relationship, some

physicians and hospitals have asked patients to sign waivers of liability prior to

treatment. When signed, these exculpatory causes, which declare that the patient

will not bring suit against the physician or institution in the event of negligence,

are used as a defense to any professional negligence suit that the plaintiff might

then file. Courts, however, have universally found such blanket waivers of the

right to sue for medical negligence to be void. They are, the courts reason, the

result of a relationship that, by its very nature, is unequal in terms of bargaining

position. Patients are typically vulnerable and afraid when they are ill and in need

of medical care. Physicians, by virtue of their training and experience, are the

only ones in a position to provide those medical services. Thus, requiring a

waiver of legal rights as a prerequisite to providing needed medical care creates

an innately unfair situation, one in which there is an element of duress [47].

Courts also reason that it is unlikely that patients could readily ‘‘shop’’ for a

different physician who would not require such waiver. After all, a patient’s

situation might not lend itself to searching for another provider. Patients may be

too sick or too afraid to challenge the physician on whom they depend for care. In

addition, if one physician or institution could require such waivers as a

prerequisite to delivery of care, all physicians and institutions would likely

require those waivers, leaving patients little rational choice. Thus, courts will not

enforce such blanket waivers, regardless of the actual state of the patient: victims

of elective or emergent illness, those well or poorly educated, and those in need

of highly specialized or routinely available services. Courts also will not permit

enforcement of such waivers even when there is a quid pro quo such as a


reduction in fees. Waivers have been held invalid even in teaching institutions

where services are provided free by students and when that arrangement is known

to and accepted by the patient in advance [48]. Thus, any such exculpatory clause

will be held invalid and will not act as a defense against a claim of medical

negligence. Patients are simply not permitted to sign away their rights to legal

redress against health care providers.

Unlike complete waivers, however, some partial waivers are allowable, as

when a patient refuses transfusion and executes a signed release for untoward

reactions that arise from that refusal. He or she, however, may still successfully

sue for damages if the physician negligently creates the situation in which blood

is required in the first place [49].

Patients also may be able to waive some rights, agreeing, for example, to

arbitration of any disputes rather than a jury trial, as long as the language of the

contract is comprehensible and obvious (not hidden in the body of another

document) [50]. Delivery of care cannot be dependent on the patient’s willing-

ness to sign such partial waivers in advance. In addition, there typically must be a

period that allows for the patient to rescind the agreement. The time for

withdrawal of consent must be of reasonable duration (perhaps 90 days) and it

must begin to run only after the patient is discharged from the hospital.

Records and confidentiality

A fuller discussion about records and confidentiality is included elsewhere in

this issue. What follows is an overview:

The medical profession itself, in the language of the Hippocratic oath,

requires that a physician keep secret those facts divulged by patients while in

the care of that physician. There is inherent in the physician-patient relationship

the transmission of sensitive information, the receipt of which assists in the

provision of quality health care. The subsequent release of that information to

others could embarrass the patient or place him or her at a disadvantage. The

possibility of dissemination of that information might discourage disclosure to

the physician altogether and, thus, compromise patient care. Fears of disclosure

have been heightened further by use of electronic record keeping and record

transmission. Federal privacy guidelines have recently been introduced, in part

in an attempt to keep medical records from falling into the wrong hands and

then being used inappropriately to affect decisions about such things as

insurance and employment.

State legislatures have codified this duty to keep professional confidences and

have made violations of the confidential relationship (by divulging patient

communications) a tort for which damages may be recovered. There are some

exceptions. Indeed, the legislature often mandates disclosure when the benefits of

confidentiality are outweighed by the greater public good of disclosure. These

exceptions include a requirement to report certain communicable diseases,

gunshot wounds, and child or elder abuse.


Disclosure of a patient’s treatment information to insurance companies by

physicians and hospitals is allowed by the terms of the contract between the patient

and his or her insurer. The information that can be disclosed without additional

patient consent is minimal, and consists of pertinent facts such as current

diagnosis, treatment, dates of treatment, and costs of treatment. Unnecessary,

unauthorized disclosure of information, particularly sensitive information, can

result in liability. Thus, when a physician, after an evaluation of a patient for a

stress-related illness, divulges to the insurer that the patient’s HIV-positive status

or his or her ethanol use is the cause of his or her stress, the physician may be found

liable for breach of a confidential relationship. Indeed, publication of pictures of a

patient sitting in a clinic’s waiting room might be a sufficient clue to the patient’s

medical status so as to constitute an invasion of the patient’s privacy [51].

When a question arises about whether or not to disclose information, it is best to

obtain prior written, explicit authorization from the patient for that disclosure [52].

It is also important to be cautious about leaving messages on family answering

machines, thereby alerting others to a patient’s visit to a physician’s office or

informing others of test results. The physician must be particularly careful about

discussing pregnancy, birth control, or HIV status, for example, with friends or

family not expressly authorized by the patient to receive such information. Adult

patients have been shocked to find that physicians’ offices have left results of

pregnancy tests or appointments at abortion facilities with their mothers [53].

Further, the doctrine of ‘‘respondeat superior’’ holds the physician responsible for

missteps like these when their agents, that is, their office staff, have made such

unauthorized disclosures. In-office training is important, then, in codifying with

whom and about what the physician’s staff may converse. It is a mistake to assume

that families are implicitly authorized to receive a patient’s medical information.

Fraud and concealment

A final caution about medical records is one that seems obvious but whose

importance cannot be overstated. Medical records must never be altered or

amended after their entry. Such alteration, even if only designed to clarify what

the physician was thinking at the time the note was originally written, will be

viewed by courts as fraud or concealment, perhaps extending the period in which

a suit may be filed by tolling the running of the statute of limitations until the

fraud has been discovered. Even without such penalties, alteration of records

creates an appearance of guilt. If a physician wishes to amend the record to

explain his or her choices and actions, he or she may do so in a separate note,

dated and timed on the day the new note is actually written. The original note

itself should not be tampered with under any circumstances.

In addition, in verbal communication with the patient, the physician may not

dissemble. To know he or she committed an error and to misrepresent his or her

actions with the intent to deceive the patient may well constitute fraud. This, too,

will toll the running of the statute of limitations until the fraud is discovered


[54,55]. There may also be a second cause of action, resulting in separate damage

awards, for the intentional tort of fraudulent concealment. Other than the legal

concerns about such misrepresentations, there are also ethical concerns about

physicians’ keeping of information—even self-incriminating information—from

patients. Recently, in fact, the Joint Commission on Accreditation of Health Care

Organizations (JCAHO) issued mandates for disclosure of adverse or unexpected

outcomes to patients [56]. Traditionally, most courts have not considered silence

or passive nondisclosure to be the legal equivalent of constructive fraud [57].

This practice may be changing, however, in the current climate that seems to

require full disclosure of medical facts. The physician may feel as though he or

she is inviting a lawsuit, and then acting as his or her own accuser and, indeed,

the plaintiff’s chief expert.

Hospital liability for acts of physicians

Years ago, it was difficult to successfully sue a hospital for the negligent acts

of its employees. Indeed, the doctrine of ‘‘charitable immunity’’ protected

hospitals from liability lest money be diverted from the charitable purposes of

the hospital to reimburse selected individuals for claims. Thus, it was thought that

necessary charitable services would be kept available. The hospital and its agents

(employee nurses, technicians, and physicians) were made immune from suit

[58]. To recover for a hospital nurse’s acts of negligence, a ‘‘borrowed-servant’’

doctrine imputed a temporary employer-employee relationship between a physi-

cian and the nurse, such that the nurse became the physician’s agent rather than

that of the hospital, and the physician bore the ultimate liability. Another doctrine,

also designed to circumvent the hospital’s immunity, was known as the ‘‘captain

of the ship.’’ It assumed that the physician controlled everything within his or her

sphere, particularly the surgeon in the operating room. The physician was held

responsible for the actions of all hospital employees within that sphere, such as

the anesthetist, the scrub tech, the transport personnel, and the circulator [59].

Both those doctrines have fallen out of favor because they are no longer

necessary; that is, hospitals are considered businesses rather than public charities

and are separately insured [60]. As such, the relative ‘‘fictions’’ of borrowing

servants and captaining ships largely have been abandoned in favor of traditional

‘‘agency theory’’: hospitals may be sued for the negligent acts of their paid

employees, as in the typical respondeat superior case. This theory obviously

covers hospital-hired nurses, anesthetists, therapists, and the rare physician who

is truly a hospital employee. The ordinary staff physician who has privileges to

practice at a hospital but is not paid by the hospital is an independent contractor.

In theory, hospitals cannot be held liable for their acts because there is no

contractual employer-employee or principal-agent relationship.

In more recent times, however, hospitals have been held liable even for the

acts of nonemployee independent contractors when a reasonable patient, based on

the facts, could conclude that the hospital employs the physician or that the


hospital vouches for the physician’s competence [61]. The patient then relies on

this representation of agency in choosing that physician to treat him or her [62].

The theory of ‘‘ostensible agency’’ then creates liability even though there is no

true contractual employer-employee relationship or no actual day-to-day or

decision-by-decision hospital control over the physician’s treatment of the

patient. The court simply concludes that the indicia of control are there.

Furthermore, the hospital actually benefits from the physician’s services because

patients are admitted, tested, and treated, and then billed for hospital-associated

expenses. Thus, the court reasons, the hospital should not be allowed to escape

liability simply because there is no formal employment agreement between the

hospital and the physician. In addition, in this age of aggressive hospital

advertising touting high-quality staff physicians who provide high-quality ser-

vices on the hospital premises, the hospital overtly holds itself out as providing

those services through its ‘‘approved’’ physician staff. This agency relationship is

particularly assumed for ‘‘RAPE’’ physicians—those hospital-based physicians

in radiology, anesthesia, pathology, and emergency medicine—whereby patients

typically choose the hospital for medical services and then are assigned to one of

those physicians on the hospital campus [63]. The patients usually do not know

or specifically choose those physicians. Rather, they rely on the hospital to

choose for them. Implicit in the hospital’s choosing is the notion that the hospital

also screens and controls and vouches for the competence of the physicians it

seems so clearly to employ. The patient is surely unaware of the fact that those

RAPE physicians are likely independent contractors, and the courts will often

assign liability to the hospital as if the physicians were its true agents.

It may not be much of a leap to apply the same agency theory to other staff

physicians who are less closely tied to the hospital than the hospital-based

physicians; that is, to the oncologists, cardiologists, or surgeons who are simply

on staff [64]. This application is particularly true if such a physician is assigned to

the patient by virtue of a call list and is not chosen specifically by the patient. The

agency theory may be less often applied when the patient first chooses the

physician himself or herself, is admitted to the hospital, and is then treated

negligently while in the hospital, because there is less reason to assume that the

patient relied on the hospital’s screening and oversight of the physician when

choosing the physician originally. Only in rare cases will the court conclude that

the mere fact that a physician has privileges to practice medicine at a certain

hospital implies that the physician has the hospital’s seal of approval on which the

patient can rely in seeing that physician in the office. The recent rise in physician-

referral hotlines through which hospitals ‘‘suggest’’ physicians and provide

contact numbers, however, could provide enough indicia of agency that the

hospital will then be liable if the patient relies on that referral and is injured.

The courts seem willing to assign liability to the hospital in part, because the

hospital is in a better position to select and oversee its staff physicians than is the

patient. Hospital liability for the acts of those physicians would, in theory,

encourage the hospital to select and oversee more carefully, thus protecting

patients from harm.


Hospitals may be able to avoid such liability for the acts of independent

contractors on its staff by appropriate disclosure of the physician’s nonemployee

status and disclaimers of liability for the physician’s actions. These disclaimers

will likely be void if presented during emergency situations or if buried in the

language of other documents but might suffice if clear and obvious and presented

at an early, calm time in the patient’s course of care.

In addition to agency theory, hospitals may also be liable for the acts of

independent contractor staff physicians under a theory of ‘‘corporate negligence.’’

Hospitals are required to screen and appropriately select physicians before

granting them staff privileges and to remove privileges from physicians who

are known to be incompetent [65]. In addition, hospitals actually may be liable

for failure to oversee the daily provision of a physician’s care of a specific patient.

If a hospital employee such as a nurse has reason to know that a physician is

delivering improper care, that nurse is then required to seek the assistance of a

supervisor, administrator, or department chairman to persuade the physician to

change the course of treatment or seek consultation [66]. It is assumed that the

hospital, although it does not control the day-to-day performance of a physician,

is much better situated to evaluate a staff physician’s behavior and intervene on a

patient’s behalf than is the patient himself or herself [67]. In reality, of course,

nurses may be very reluctant to go around physicians to complain to their

superiors about care they feel may be inappropriate. Regardless, many juris-

dictions will impose liability on the hospital for corporate negligence when the

nurse fails to act by alerting the hospital administrators to the physician’s

perceived negligent conduct.

Summary

The worlds of law and medicine meet in some very interesting and very

important ways. Together, lawyers and physicians tackle such subjects as cloning,

right to die, surrogate parenthood, and embryo preservation and implantation, to

name a few. The most personal and painful nexus for physicians comes when a

physician is sued and must then deal with the legal system as a defendant. The

world of plaintiffs, experts, legal doctrines, state and federal law, and judicial

application of law to the facts of the case can be intimidating. It is hoped that this

overview has allowed the hematology-oncology practitioner to become more

familiar with the theories and procedures involved in medical negligence actions.

The physician, when comfortable with the basics, may better tolerate the apparent

idiosyncrasies of the system and even may be able to protect him or herself from

becoming involved in a lawsuit ab initio.

References

[1] Rajnowski v St. Patrick’s Hospital, 564 So2d 671 (La 1990).

[2] Harris v Groth, 663 P2d 113 (Wash 1983).


[3] Adincula v United Blood Services, 678 NE2d 1009 (Ill 1996).

[4] West v Sanders Clinic, 661 So2d 714 (Miss 1995).

[5] Dikeau v Osborn, 881 P2d 942 (Utah 1994).

[6] Tanner v Westbrook, 174 F3d 542 (Miss 1999).

[7] Netto v Goldenberg, 640 NE2d 948 (Ill 1994).

[8] Nail v Laros, 854 SW2d 250 (Tex 1993).

[9] Helling v Carey, 519 P2d 981 (Wash 1974).

[10] Toogood v Regal, 764 A2d 522 (Pa 2000).

[11] Mundell v LaPata, 635 NE2d 933 (Ill 1994).

[12] Adams v Family Planning Associates, 733 NE2d 766 (Ill 2000).

[13] Fossett v Board of Regents of University of Nebraska, 605 NW2d 465 (Neb 2000).

[14] Schorlemer v Reyes, 974 SW2d 141 (Tex 1998).

[15] Gilinsky v Indelicato, 894 F Supp 86 (DC NY 1995).

[16] NBD Bank v Barry, 566 NW2d 47 (Mich 1997).

[17] Emergency Medical Treatment and Active Labor Act. 42 USC x1395 dd (2001).

[18] Sparks v Hicks, 912 P2d 331 (Okla 1996).

[19] Pittman v Upjohn, 890 SW2d 425 (Tenn 1994).

[20] Pate v Threlkel, 661 So2d 278 (Fla 1995).

[21] Reisner v Regents of the University of California, 27 Cal Rptr2d 528 (Cal 1995).

[22] Bradshaw v Daniel, 854 SW2d (Tenn 1993).

[23] Tarasoff v Regents of University of California, 529 P2d 293 (Cal 1974).

[24] Welke v Kuzilla, 375 NW2d 403 (Mich 1985).

[25] Macsenti v Becker, 237 F3d 1223 (Okla 2001).

[26] Hunt v Mercy Medical Center, 710 A2d 362 (Md 1998).

[27] Brown v Philadelphia College of Osteopathic Medicine, 674 A2d 1130 (Pa 1996).

[28] Petriello v Kalman, 576 A2d 474 (Conn 1990).

[29] Drury v Baptist Memorial Hospital, 933 SW2d 668 (Tex 1996).

[30] Majca v Northwestern University, 701 NE2d 1084 (Ill 1998).

[31] Holton v Memorial Hospital, 69 NE2d 1202 (Ill 1997).

[32] Herskovits v Group Health Cooperative, 664 P2d 474 (Wash 1983).

[33] Wendland v Sparks, 574 NW2d 327 (Iowa 1998).

[34] Hirpa v IHC Hospitals, 948 P2d 785 (Utah 1997).

[35] Villamil v Benages, 628 NE2d 568 (Ill 1994).

[36] Pemberton v Dharmani, 525 NW2d 497 (Mich 1994).

[37] Velazquez v Jiminez, 763 A2d 753 (NJ 2000).

[38] Eggleston v Biomedical Applications of Detroit, 2001 WL 1579676 (Mich App 2001).

[39] Thompson v Franciscan Sisters Health Care Corporation, 578 NE2d 289 (Ill 1991).

[40] Reyes v Duffy, 618 NYS2d 484 (NY 1994).

[41] Milano v Freed, 767 F Supp 45 (DC NY 1991).

[42] Witt v St. Vincent’s Medical Center, 746 A2d 753 (Conn 2000).

[43] Ostrowski v Azzara, 545 A2d 148 (NJ 1988).

[44] Eiss v Lillis, 357 SE2d 539 (Va 1987).

[45] Jensen v Archbishop Bergan Mercy Hospital, 459 NW2d 178 (Neb 1990).

[46] Anglin v Grisamore, 386 SE2d 52 (Ga 1989).

[47] Tunkl v Regents of the University of California, 32 Cal Rptr 33 (Cal 1963).

[48] Ash v New York University Dental Center, 564 S2d 308 (NY 1990).

[49] Corlett v Caserta, 562 NE2d 257 (Ill 1990).

[50] Coon v Nicola, 21 Cal Rptr2d 846 (Cal 1993).

[51] Y.G. v Jewish Hospital, 795 SW2d 488 (Mo 1990).

[52] Amente v Newman, 653 So2d 1030 (Fla 1995).

[53] Hobbs v Lopez, 645 NE2d 126 (Ohio 1994).

[54] Borderlon v Peck, 661 SW2d 907 (Tex 1983).

[55] Price v Medical Center of Louisiana at New Orleans, 804 So2d 743 (La App 2001).


[56] Joint Commission on Accreditation of Health Care Organizations. Standard RI 1.2.2. Available

at: http//www.jcaho.org/standards-frm.html. Accessed March 5, 2002.

[57] Schendt v Dewey, 568 NW2d 210 (Neb 1997).

[58] Simmons v Tuomey Regional Medical Center, 533 SE2d 312 (SC 2000).

[59] Lewis v Physicians Insurance Company of Wisconsin, 627 NW2d 484 (Wis 2001).

[60] Clark v Southview Hospital, 628 NE2d 46 (Ohio 1993).

[61] Laderer v St. Rita’s Medical Center, 702 NE2d 476 (Ohio 1997).

[62] Albain v Flower Hospital, 553 NE2d 1038 (Ohio 1990).

[63] Rose v Paintsville, 683 SW2d 255 (Ky 1985).

[64] Kashishian v Port, 481 NW2d 277 (Wis 1991).

[65] Gafner v Down East Community Hospital, 735A2d 969 (Me 1999).

[66] Darling v Charleston Community Memorial Hospital, 211 NE2d 253 (Ill 1965).

[67] Insinga v LaBella, 543 So2d 209 (Fla 1989).


Date post:	27-Dec-2016
Category:	Documents
Upload:	marsha
View:	227 times
Download:	4 times

Medical malpractice: a review of issues for providers

Documents