Your primary focus as a physician is unquestionably the best possible diagnosis and treatment of your patients. Nevertheless, you, like all other professionals, work under the cloud of a constant presence, hovering like a Big Brother: the potential of being sued.
I must state clearly at the outset: our firm does not handle lawsuits against doctors.
This article is to explain the basic concepts underlying medical malpractice lawsuits – to take some of the mystery out of that cloud. However, this article is not legal advice, nor is it intended as a comprehensive treatment of this area of law.
A medical malpractice claim, like any other civil action for damages resulting from an injury, looks at the actions claimed to have caused the injury through the lens of a standard of care. The issue is not your knowledge of the proper standard of care, but whether your actions (which allegedly resulted in the injury) conformed to the standard of care.
Your standard of care as a physician will be established by an expert witness who has knowledge of the methods of customary and proper medical treatment in your community or a similar community. If the person suing you proves your actions did not conform to the standard of care, then you are liable for the injuries resulting from your actions.
Note that the person suing you has the “burden of proof.” In other words, your job is not to prove you met the standard of care. It is to defend against the suing party’s (plaintiff’s) efforts to prove that you did not. Your failure to meet your standard of care is negligence, or, more specifically, malpractice.
If the plaintiff shows by a preponderance of the evidence that your treatment (actions or failure to act) did not meet the standard of care, the plaintiff then must prove your conduct was a substantial factor in causing the injuries claimed. This involves establishing 1) what the injuries are, as well as 2) the substantial role of your malpractice in causing them.
You are liable only for the injuries actually resulting from your malpractice. For example, if someone comes to you with a broken bone and you negligently set it, you can only be found liable for any injuries resulting from your negligence, not all the consequences flowing from the broken bone itself. If you or someone else properly re-sets the bone a few days later, the consequences of the bad setting and, accordingly, your liability would probably be minimal.
However, the plaintiff does not need to establish the standard of care by expert testimony if a jury using common sense could infer that the injury would not have occurred unless someone was negligent. This is the res ipsa loquitor (“the thing speaks for itself”) rule. So ruled the Oregon Court of Appeals in 1999 in a case where a serrefine clamp was left inside the plaintiff’s chest after open heart surgery. This may seem obvious enough, but the Court of Appeals was needed to overturn a directed verdict for the medical defendants in that case. Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637, rev. denied, 329 Or 318 (1999).
INFORMED CONSENT
Another pitfall to watch for is informed consent. If you have only obtained consent to operate on the deviated septum of your patient’s nose, do not remove his or her tonsils while you are in there. You could be sued for battery as well as negligence. Hively v. Higgs, 120 Or 588 (1927).
Also, you have a duty to warn your patients of the risks of a procedure and advise of alternative approaches to insure their informed consent. Getchell v. Mansfield, 260 Or 174, 183 (1971)
In fact, the Oregon legislature has enacted into law your duty of informed consent. A physician or podiatrist must explain:
- the proposed procedure or treatment in general terms, then the patient must be asked if he/she would like a more detailed explanation; and, if yes, the procedure shall be disclosed in substantial detail, unless to do so would be detrimental to the patient;
- alternative procedures or methods, if any; and
- risks, if any. ORS 677.097
A physician’s violation of this or any other statute governing his/her medical practice constitutes “negligence per se;” that is, negligence as a matter of law, without the plaintiff’s having to carry his burden to prove negligence further.
STATUTE OF LIMITATIONS
As with other injury claims, plaintiffs pursuing medical malpractice claims must file in court within two (2) years after the injurious act or they lose all their legal rights to sue. However, if the malpractice is not discovered until later, a plaintiff has up to two (2) years from the date the malpractice was discovered, or should have reasonably been discovered, up to a maximum of five (5) years after the injurious act.
A CASE INVOLVING A DRUG MANUFACTURER
Physicians are usually not liable for harm resulting from FDA-approved drugs, if properly prescribed. Physicians may be found liable if drugs are mis-prescribed, including failure to properly take into account interactions with other drugs or a patient’s susceptibility based on the patient’s condition or medical history.
However, a physician-prescriber may sue a drug manufacturer for economic losses, including loss of reputation and earnings, resulting from the drug manufacturer’s intentional misrepresentations and failure to warn, according to the Oregon Supreme Court. Oksenholt v. Lederle Laboratories, 294 Or 213 (1982)
The case involved a physician who had been sued for malpractice by a patient injured by side effects from a drug manufactured by Lederle. The physician paid a sum in settlement, then turned around and sued Lederle. The trial court had dismissed the physician’s case at the drug manufacturer’s request. However, the higher courts reversed and allowed the physician to recover losses for damage to his reputation and earnings, but not the costs of settlement.
You may think of malpractice only when you pay your malpractice insurance premiums. Of course, part of what you are paying for is the assurance of legal representation should a claim be made. Nevertheless, we hope this primer has taken some of the mystery out of the specter of medical malpractice. Specific questions should, of course, be directed to your attorney.
This article was prepared by Robert L. Chapman and Peter E. Yeager