Medical Malpractice 101 --- Just the basics

What is medical malpractice?

Many people have a simplistic view of medical malpractice that goes something like this:

1. Patient sees doctor.
2. Doctor makes a mistake.
3. Patient sues doctor.
4. Doctor’s insurance company pays money to patient.

The reality, however, is that the process is actually quite complex. It is important for patients and their attorneys to understand that a bad medical outcome does not necessarily mean malpractice. Doctors may even make serious mistakes and not be guilty of malpractice. The reason for this is that the law creates a special set of requirements that must be met before a patient can win a claim of medical malpractice. The four absolute requirements are duty, breach, harm, and causation. Together, these factors are known as the “elements of negligence.” Unless each element is present in a malpractice claim, the case will not succeed.

Duty is the legal relationship between two parties. In the practice of medicine, there is a duty between the doctor and the patient. When a patient presents to an ER and sees a physician, a duty is established and the physician must care for the patient in an appropriate manner. In other words, the physician has a duty to treat the patient, and must perform that duty in a competent manner. Since duty is easy to prove, it is rarely disputed in medical malpractice cases.

Breach of duty is a failure to maintain the duty that the physician owes to the patient. In basic terms, this is the “malpractice” of which the patient is speaking. When a treating physician departs from an appropriate “standard of care,” he or she may be committing “malpractice” (also know as medical negligence). If a physician is negligent, then he or she has breached the duty to appropriately care for the patient.

Harm is the personal loss, injury, or deterioration that results from the negligence of the physician. A patient is harmed when a physician commits “malpractice” and the patient suffers an identifiable effect. This harm may take the form of pain, suffering, scarring, loss of life, or any of a number of other injuries. Essentially, harm is the way in which the malpractice affected the patient.

Causation is the critical link between negligence and harm. In other words, the doctor’s negligence (malpractice) must have caused the patient’s harm. When an unbroken chain links the doctor’s actions to the patient’s harm, then causation exists.

The following real-life cases illustrate these points:

CASE ONE. A patient who is allergic to penicillin goes to an emergency department. The patient is accidentally given penicillin and develops a rash that the ER doctor easily treats. The patient then sues the doctor who gave the penicillin. Who do you think won?

CASE TWO: A patient receives a chest X-ray that shows pneumonia. The ER doctor fails to notice the additional finding of a growth in the patient’s lung. Two months later, the patient dies from untreated lung cancer that grew from the initial mass. The patient’s family then sues the physician who missed the growth on the X-ray. Who do you think won?

CASE THREE: A patient with a large cut on his arm goes to a local ER for treatment. The emergency physician repairs the wound, but the patient develops a large and unsightly scar. The patient sues the physician for causing her scar. Who do you think won?

These cases are important because not a single one stood up as a true example of medical malpractice. In other words, the defendant physician prevailed.

To understand why these cases did not result in a claim of medical malpractice, you must first understand the elements of negligence and then realize that each case lacked a single, specific requirement.

In CASE ONE, the patient developed a simple rash that was easily treated. This patient lacked an identifiable harm since no real damage occurred. The lack of harm negates this case.

In CASE TWO, the patient died from a growth that was missed on the chest X-ray. Unfortunately for the patient, the cancerous growth would have killed him whether or not it was diagnosed and treated in the emergency department. Therefore, the doctor’s negligence did not cause the patient’s harm --- the growth itself caused the harm. Causation does not exist and the case was dropped.

In CASE THREE, the patient developed an unsightly scar. The physician, however, performed the skin repair in an excellent and standard manner. It was neither foreseeable nor preventable that the patient would scar so badly. Most importantly, the scarring did not occur as the result of negligence. The physician did not breach his duty to properly care for the patient, and the doctor won the case.

There you have it. When duty, breach, harm, and causation exist, then a patient may be able to make a claim of medical malpractice. If any single factor is missing, then there is no legal foundation for a claim of malpractice and the patient will lose the case.

Without question, emergency medical care in the United States is the finest in the world. Emergency physicians treat over 100 million patients per year, and cases of medical malpractice are relatively rare. Most complaints against physicians are dropped when attorneys learn that one of the key elements (duty, breach, harm, or causation) is missing. Of the cases that do go to trial, most are resolved in favor of the physician. In other words, a true case of medical malpractice resulting in a judgment against a physician is a rare event indeed.

How do I know if I have a case?

So, how do you know if you have a case? This is a complex question and there are many ways to find an answer. Before asking that question, however, you need to decide if you want to have a case. Litigation is a long and complex process that should not be entered into lightly. It is one of the most important decisions that you will ever make, and it may place you in a variety of uncomfortable situations. For example, you will need to relive the entire medical experience as you recount the medical details during pretrial preparations, depositions, and possibly in the courtroom. You will be asked extensive questions by attorneys from both sides. You will also come face to face with the physician that you are accusing of malpractice when you encounter him or her at deposition or at trial. At the extreme, the process can drag on for years, cost thousands of dollars, and yet still result in a verdict in favor of the physician.

On the other hand, any patient who has been negligently harmed is entitled to file a complaint, and that complaint takes the form of a malpractice lawsuit. It is a right under our system of law, and if a patient truly wishes to seek justice for their injuries, then the legal system is there to serve them. At this point, the patient (or the patient’s estate) becomes the plaintiff and the physician becomes the defendant.

For those considering this path, the first step is to speak with an attorney who specializes in medical malpractice law. Most attorneys will provide a free telephone consultation or a free initial meeting, and this serves as a good starting point to learn more about your potential case. The attorney may ask you to get copies of your medical records, or he may have you sign a release that allows the law firm to obtain them. The records will be required in order for the attorney to have a medical expert review them.

Alternatively, some people prefer to have a medical expert review the records themselves. This approach allows the patient to speak with an expert directly and get a quick “yes or no” answer about what happened. For some families, just having someone explain what happened may be all they need in order to feel comfortable about their medical situation. This may be acceptable if the person knows a physician who is willing to do this and the physician is experienced in legal matters. It should be strongly noted that many physicians lack knowledge of the legal requirements for medical malpractice, and the use of an inexperienced physician may lead to a dangerously incorrect opinion. Of course, EMLA, Inc., is available to consult with patients and their families directly. For most people, however, the usual route is to speak directly with an attorney.

What does it cost to find out?

As for the cost, it is usually quite expensive to fully litigate a medical malpractice case. Expenses arise from preparing medical records and other documents, obtaining a preliminary case review, securing additional expert opinions and testimony, creating trial exhibits, and paying for the time of all experts and attorneys involved in the case. There are several ways that these charges may be paid. In some cases, the attorney will ask for an “upfront fee” in order to begin the case. This is spent on copying the medical records and getting an initial expert opinion as to whether or not the case has medical merit.

Some attorneys, however, may decide to perform the initial investigation and pay for the fees themselves. This first step depends on the complexity of the case and typically costs between $500 and $2000. If the case is felt to have merit and the attorney decides to proceed, then further expenses will be incurred. At this point, most attorneys handle medical malpractice cases on a “contingency fee” basis. This means that the attorney will be paid his or her hourly rate and expenses from the funds recovered by the plaintiff if the plaintiff wins or settles the suit. In general, attorneys receive 25% to 40% of the amount awarded to the plaintiff, plus expenses which are paid from the remaining amount.

Regardless of the outcome of the case, the plaintiff is still responsible for all expenses, though most attorneys will only try to recover their fees and expenses if the plaintiff wins. The bottom line is that medical malpractice cases are expensive to pursue, but a plaintiff may be able to proceed with minimal or no cost at all. Talk to your attorney to learn more about his or her specific fee schedule.

Where do I go Now?

You are welcome to contact Dr. Bentley and to have EMLA, Inc. review your case for a flat fee of $1500. This preliminary analysis will answer your questions about all aspects of the patient’s care. It will also determine whether or not you may have a potential claim for medical malpractice. In most cases, this basic level of service is an excellent starting point in order to educate patients and their families about what occurred during their medical encounter. Realizing that most cases are without true negligence, this review may also provide piece of mind and serve as a point of closure. Since EMLA, Inc. does not provide legal advice, however, you will still need to contact an attorney for specific legal questions. EMLA, Inc. can also refer you to an attorney in your area at no additional charge.

NOTE: The information on this web site is provided as an educational courtesy by EMLA, Inc. It is neither intended to provide specific legal advice, nor is it a substitute for consultation with a licensed attorney.