Medical Malpractice

Most people think the term "malpractice" only applies to medical doctors. That simply is not true. There are other health care providers, such as chiropractors, therapists, nurses, psychologists, hospitals and dentists who may also be sued for medical malpractice under Tennessee law.

How can I determine if I might have a valid Medical Malpractice case?

Duty Toward the Patient: The first element in any medical malpractice lawsuit is that of a duty owed to you, the patient. If there is no legal duty to act, a medical professional can stand by doing nothing while a person suffers, and still not be negligent. Thus, the first question to address in a medical malpractice lawsuit is whether the medical professional owed any duty to the plaintiff.

Often this question is easily answered. When a patient goes to a doctor with a problem and the doctor agrees to treat the patient, the doctor has assumed a duty to treat the patient. By agreeing to diagnose or treat a patient, the doctor has indicated that he or she has the appropriate training and skill to adequately care for the patient and has assumed a duty toward the patient.

Cases in which the duty owed a patient is contested generally arise in the context of a doctor who has done nothing toward the patient (nonfeasance), rather than having done something incorrectly (malfeasance). Historically, in the American system of jurisprudence, a person had no affirmative duty to help others, absent some special relationship between the two parties.

The Good Samaritan Law imposes no duty on a civilian to provide aid to an injured person; however, once a person voluntarily assists someone, he or she becomes liable under the law for any injury that results from the failure to act as an ordinary reasonably prudent person would have acted under the same or similar circumstances. Thus, if a doctor at a restaurant rushes to help the victim of a heart attack, there may be a duty to continue to aid the patient.

An important area of medical malpractice law receiving increased attention in the courts deals with the circumstances under which a doctor owes a duty to persons other than the patient. In some situations, the doctor may owe a duty to persons other than those who undergo his or her treatment. For example, a pedestrian injured when an automobile driver suffers an epileptic seizure while driving might charge that the driver's doctor violated a duty to the general public by failing to properly diagnose the driver's epileptic condition. The victim of a domestic assault might charge that the perpetrator's psychiatrist had a duty to warn the victim of the patient's unstable condition.

Breach of the Standard of Care Medical malpractice results if the doctor injures his or her patient by using a lower degree of skill and care than a reasonably competent doctor would use in diagnosing or treating the same condition. In order to avoid liability for medical malpractice, a physician must--at a minimum--use the same level of care that another reasonably competent doctor would use under the same circumstances. In most cases, a plaintiff must present expert testimony on what the standard of care should have been. Medical malpractice lawsuits often become battles in which each side has expert witnesses declaring different levels of acceptable medical standards. Therefore, it is imperative that a lawyer for a person bringing a malpractice case state the case in clear, understandable terms so that any juror can comprehend what the doctor failed to do that he should have done.

In practice, a doctor is not considered a reasonably competent doctor if he or she does not keep study and stay current with the commonly accepted methods of treatment. However, if there is more than one commonly accepted method of treatment, a doctor is free to use whichever he or she chooses, as long as the method is accepted by a substantial number of physicians.

A doctor who clearly disregards well-established medical standards or who attempts to perform medical procedures clearly beyond his or her capabilities is not using the same level of care that a reasonably competent physician would use. Anyone injured by such a careless doctor would almost certainly recover damages from the doctor in a medical malpractice lawsuit.

Causation: The third element of a medical malpractice lawsuit frequently is causation. Causation is frequently divided into two separate inquiries--whether the professional's actions in fact caused the harm to the patient, and whether the professional's actions were the proximate cause of the patient's harm.

The "cause in fact" inquiry is usually answered with a "but for" test. That is, a doctor's action caused the patient's harm if, but for that action, the patient would not have been harmed. The proximate cause inquiry asks whether, if the action did in fact cause the harm, the professional ought to be held responsible for his or her actions. In some rare instances, the physician's actions are so removed from the final harm to the patient that the law cuts off liability for those actions by saying that the tortious conduct was not proximate to the harm. In other words, there is not a close enough connection between the action and the harm to say there is proximate causation.

Sometimes this causation inquiry is answered rather easily--such as when a doctor gives a patient the wrong drug and that drug causes permanent injury. Difficult issues arise when the harm to the patient had more than one cause. For example, two doctors, acting independently, might both prescribe the same wrong medication. If the "but for" analysis is applied to each doctor's actions in isolation, it cannot be said that his or her actions were the cause of harm to the patient because the patient would have been harmed through the negligence of each doctor. Different jurisdictions have created their own rules to deal with "multiple cause" injuries.

Damage to the Patient: A person who is the victim of medical malpractice can sue for the injuries and all direct consequences of those injuries. "Direct consequences" include any mental or physical pain and suffering caused by the careless doctor and any lost wages or other economic damages resulting from the injury.

Affirmative Defenses

A physician asserting an affirmative defense admits, for the purpose of argument, that the plaintiff can establish the existence of all four elements of a medical malpractice action, but the defendant argues that the existence of some other factor excuses the medical professional's actions. The physician must prove his or her affirmative defense.

Generally, a doctor violates a patient's right to confidentiality by releasing information about his or her medical condition to unauthorized persons or organization without first having obtained the written consent of the patient.

Consent: Consent is the most frequently asserted affirmative defense in medical malpractice lawsuits. Consent means that the health care professional informed the plaintiff of all risks associated with a particular procedure, the plaintiff consented, and the doctor or other medical professional did not go beyond the procedures to which the plaintiff agreed. Doctors frequently argue that they cannot guarantee health to their patients, only to treat them in accordance with the standard of care. We have found that doctors frequently tell patients one thing before a surgery, for example, and then something entirely different when the surgery does not come out as the doctor said it would.

Doctors and hospitals have tried to protect themselves from medical malpractice lawsuits by having patients sign consent forms before they receive treatment. These consent forms typically include warnings that medicine is an imperfect art and not an exact science, and that patients must assume all the risks of any procedures. By signing a consent form, a person does not give up all his or her rights to sue the medical professional if things go wrong. First, such an agreement may not be valid if the doctor does not fully inform the patient of the risks associated with the particular procedure. In other words, only a complete and informed consent is valid. However, even a valid consent form is no protection for a doctor who either acted beyond the scope of the consent or who failed to perform the procedure according to well-accepted medical standards.