The malpractice of malpractice.

• Author: Klebanow, Diana
• Position: Medicine & Health

IT IS IRONIC that patients who bring medical malpractice suits against physicians frequently bear a stigma. They are accused of subjecting doctors to untold anguish because many of their lawsuits are regarded as frivolous; they are assailed for driving up health care costs by compelling doctors to practice defensive medicine (performing unnecessary tests and medical procedures to defend themselves against future lawsuits); and they are criticized for forcing physicians to regard patients as potential adversaries who will seek to sue them unnecessarily. The irony is the fact that the real victims of medical malpractice are the patients.

Medical malpractice comes under the negligence part of tort law because it involves a breach of duty between a health care professional and a patient. It is based on the premise that, if the former is not reasonably careful in what he or she does, that individual should be held liable for the injury that he or she caused the latter. The term "health care professional" is not confined to a physician. It can include categories like a hospital, dentist, technician, nurse, pharmacist, and psychologist.

There are four elements to a malpractice case: the accuser (or plaintiff) is owed a duty; the accused (or defendant) violated that duty; the accused departed from the accepted standard of care that a reasonable peer professional would have provided in the same or similar circumstances; and the accuser had a significant injury as a result of the negligence, resulting in damages.

The health care professional has a duty to warn the patient about medical risks, known as the duty of informed consent. On the other hand, a lawsuit cannot be sustained if the alleged harm is accepted by the patient as a possible outcome for a given condition, or if the disease progresses when the patient is in treatment The patient also has a duty under informed consent to provide pertinent information, such as furnishing a complete health and medical history, and to adhere to the treatment plan. In a lawsuit, a patient can seek damages for economic losses and pain and suffering. While punitive damages can be sought from a health care professional or a medical facility (on allegations including the deliberate harm to a patient), these damages rarely are awarded in a malpractice suit.

The most common types of breaches in the medical profession involve failures to diagnose; misdiagnoses; misreading or ignoring laboratory results; unnecessary surgery; surgical errors or wrong site surgery; incorrect medication or dosage; poor follow-up aftercare; premature discharge; disregarding or not taking appropriate patient history; failure to order proper testing; and failure to recognize symptoms. In the U.S., the leading cause of malpractice suits is diagnostic error, which account for around 40% of cases, costing insurers an average of $300,000 per case to settle.

Patients run into difficulties when they try to find out when errors take place. Physicians are not legally required to disclose malpractice to patients, even though they are obligated under the code of ethics of the American Medical Association to inform patients of the facts concerning mistakes of judgment that occurred. In a similar manner, hospitals are subject to the 2001 standards of the Joint Commission on Accreditation, which requires similar disclosures. Since neither or these regulations is mandatory, both physicians and hospitals tend to ignore them.

Those patients who sue can be in for a rude awakening. For one thing, health care professionals are loathe to testify against each other, although some are more than willing to testify on behalf of a colleague. There also are some insurance companies that require physicians to sign riders, stating that their own malpractice policies will be subject to review if they testify on behalf of a plaintiff in a trial. Pursuing a malpractice lawsuit also is very expensive, and many attorney would prefer to settle a case quickly, as opposed to...