Common Law Liability in the Healthcare Context

• Author: Eric E. Johnson
• Pages: 401-428

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11. Common Law Liability in

the Healthcare Context

“Like a surgeon – hey! – cuttin’ for the very first time.

Like a surgeon! Here’s a waiver, for you to sign.”

– “Weird Al” Yankovic, 1985

In General

The healthcare setting is a fertile one for torts. So many things can go

wrong in the course of diagnoses, drug treatments, and surgeries. Of

course, automobiles and roadways provide many opportunities for

accidents as well, but hospitals and physicians tend to have one thing

that the average driver does not – deep pockets. The confluence of

injuries to fuel complaints and money to pay judgments makes

healthcare a uniquely important setting for tort law.

At this point, you have learned the basics of negligence law, and thus

you know most of what is relevant to lawsuits against physicians and

hospitals. But there are a few important things to add. This chapter

covers some additional common-law doctrine that applies to

healthcare torts. The next chapter concerns the effect of a federal

statute, ERISA, which often blocks plaintiffs from suing health-

insurers and HMOs in tort.

There are three aspects of the common-law torts in the healthcare

context that are covered in this chapter.

First, in a medical malpractice action for negligence, the standard of

care is different. As we saw – in particular with The T.J. Hooper – the

custom or standard practice of an industry is not dispositive when it

comes to determining the standard of care. That is to say, the

standard practice of an entire industry can be found unreasonable

and thus held to fall below the standard of care to which defendants

are held in negligence actions. That is not the case, however, with

medical malpractice. Medical custom – what physicians generally call

the “standard practice” or “standard of care” – is the benchmark for

determining breach of duty in the context of medical malpractice

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negligence claims. This means that what is called “standard of care”

in medical jargon ends up dictating what we refer to as the “standard

of care” in legal jargon.

Second, the intentional tort of battery – to be dealt with in a more

general way in the second volume of this casebook – has a unique

role in the medical setting. The healthcare version of battery, called

medical battery, provides a way for patients to sue physicians who

treat them beyond the scope of the patient’s consent. Consistent with

battery doctrine, and in distinction to negligence, a medical battery

action has no requirement of showing damages or an injury.

Third, there is a kind of claim that is unique to healthcare: the action

for informed consent. The informed consent action is generally

available where a patient was not apprised of an important risk

necessary to make an informed decision about treatment, and the

patient then suffers the negative consequence associated with the

undisclosed risk.

The Standard of Care for Healthcare Professionals in

Negligence Actions

Basics

Most cases falling under the label “medical malpractice” are

negligence cases. Examples of medical malpractice negligence actions

would include suits arising from an internist who prescribes a drug

contraindicated by something in the patient’s history or a radiologist

who fails to see a tumor that other radiologists would have seen.

There is a key difference between negligence law generally and

negligence law as applied to physicians: the standard of care.

Physicians are considered professionals, and for professionals, the

standard of care is not that of a reasonable person, but is instead the

knowledge and skill of the minimally competent member of

that professional community. Another way of putting this is that

custom becomes dispositive in cases of professional negligence. Is it

the prevailing custom for neurosurgeons to order an MRI scan

before undertaking a scheduled brain surgery? If so, then failing to do

is a breach of the duty of care. If not, then there is no breach – even