Legal Liability in Healthcare: Negligence & Malpractice
The Third Leading Cause of Death
”We never fail when we try to do our duty, we always fail when we neglect to do it.” – Robert Baden-Powell
”All men make mistakes, but a good man yields when he knows his course is wrong, and repairs the evil. The only crime is pride.” – Sophocles, Antigone
During recent times, medical errors have been found to be the third leading cause of death in the United States, with heart disease being the first, and cancer the second. This means that somewhere between 200,000 and 400,000 patients suffer or die each year from issues that could have been prevented. For healthcare professionals, staying ahead of these sobering statistics and avoiding negligence and malpractice is a daily effort requiring constant surveillance.
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Legal Liability of Healthcare Practitioners
Medical malpractice has been defined in professional literature as ”any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” In the United States, the laws that govern medical malpractice come from the individual states. Each state has its own boards of professionals who create the licensing requirements and basic laws governing practice for the various practitioners. For example, the Nurse Practice Act in each state covers the definition of the nurse’s scope of practice, the educational requirements, and the grounds for disciplinary action for violations of the act. However, laws that govern medical practice are derived from common law. This means that they evolve from court rulings that have taken place over the years.
Difference Between Malpractice and Negligence
While the terms ”malpractice” and ”negligence” are sometimes used interchangeably, they are two different things. Negligence in healthcare is simply not doing what a reasonably prudent person would do who is in a similar situation. The term ”negligence” does not even imply a professional relationship between the offending and injured parties although in healthcare, that relationship usually exists.
Malpractice, on the other hand, means that a professional, licensed healthcare practitioner has failed to meet the standards of his profession in the treatment of a patient. Negligence and malpractice result in harm to the patient, but malpractice is about more than just being reasonable and prudent. It’s about violating the laws of a professional discipline.
Elements of a Medical Malpractice Case
All medical malpractice cases must meet similar criteria to have any chance of rendering a verdict in favor of the injured patient. They must contain the elements of duty, breach of duty, causation, and damages. They must also be filed within the statute of limitations. The statute of limitations is the time period designated by state law during which the case must be filed after the injury took place.
Duty
Before a practitioner can be guilty of malpractice, it must be established that there is a professional relationship between that practitioner and the patient. For example, if someone at a cocktail party asks another guest who is a doctor what the best treatment is for a headache and the doctor tells him to take an aspirin, that’s not a professional relationship; if something goes wrong, there can be no malpractice. The person must be seeing the practitioner as a patient.
Breach of Duty
It must also be established that the duty owed by the practitioner to the patient has somehow been violated, or breached. To show that this has happened, comparisons of the practitioner’s actions to a standard of care are often made. The standard of care is the set of actions that another reasonable practitioner of the same profession would have made under similar circumstances.
