Many times, in my 35-plus years involved in medicine, have I heard, seen or otherwise experienced the concept of medical malpractice in all its splendor. I’ve looked on as medical careers and personal lives were shattered, patients were injured, lawyers rubbed their hands together and potential co-defendants ran for cover. Yes, no word like “malpractice” can quite send a chill up a physician’s spine.

But few patients, and perhaps even fewer doctors, really understand what both the definition and process of malpractice is. Simply put, medical malpractice refers to a “tort,” a legal term for a civil (as opposed to criminal) wrong, perpetrated by one party on another. It grew out of English Common Law and, despite efforts at reform—including no-fault (as New Zealand has), limited liability (as some states have) and statutes of limitation—medical malpractice is still all too common. It has been estimated that, depending on specialty, a doctor can expect to be sued every 7 years. Why is this so?

Let’s first look at what legally defines medical malpractice. For it to have legally occurred, four criteria must be met. If any one of the four is not met, there is no malpractice. They are:

  1. There must be a doctor-patient relationship.
  2. The doctor must have a duty to the patient.
  3. The doctor must have breached that duty.
  4. The breach of the duty must have caused harm.

This is where most patients and doctors get tangled up. The reason so many cases never go to trial is that all four of the criteria are often not met. Plaintiff’s attorneys should know this; the ones who do know are resistant, rightly so, to take on a case. Sometimes a patient or plaintiff’s attorney will go looking for a harm that is supposedly done to a patient, such as lack of consortium (where a patient’s relationship with a spouse or partner has allegedly been negatively affected by a physician’s action). One case is the patient who had surgery and developed an ugly scar and, as a result, the patient’s husband does not want to have sex with the patient. This is an extreme example, but it does occur.

The common reasons patients sue doctors are:

  1. Lack of informed consent.
  2. Operating on the wrong site.
  3. Delayed or missed diagnosis that eventually caused harm.
  4. Retained surgical instruments in the patient’s body.
  5. Adverse drug reactions.
  6. Complications from interventions.
  7. Birth-related injuries, whether immediate or of later onset.
  8. Anesthesia injuries, including brain death, wrongful death, nerve injuries, dental injuries, throat injuries or eye injuries.

The list goes on.

There is a standard that physicians are held to in order to determine whether she or he deviated from the standard of care and therefore was negligent in performing medical duties. That standard is usually defined as “what a physician exercising diligence with similar training and experience in the community” would have done in identical or similar circumstances.

Keep in mind that certain jurisdictions, due to demographics, politics and other factors, can be either more plaintiff- or defendant-friendly. For example, a plaintiff’s case tried in Washington, DC, my hometown, is much more likely to go a plaintiff’s way, all things being equal, than a case in Arlington, Virginia, a mere two miles from DC. There, defendants fare better.

Also be mindful of the legal arrangements. Most lawyers will only take a case if they see a potential big payout for themselves, as in an injured baby case or a case where a bread-earner for a large family is severely injured. Most plaintiff’s attorneys work on a contingency basis, where they get a percentage of the total award. If you consider a lawsuit, you should keep that in mind. Also understand the breakdown of damages. You could be awarded money for additional hospital or medical care, as well as compensatory damages for lost income, future missed earnings, and even putative damages, which punish the defendant for particularly egregious errors or omissions.

But if you do consider suing your doctor, you must realize all that I’ve written above plus:

  1. The process can be very slow—think years.
  2. Most malpractice cases are settled out of court, i.e., they never go to trial.
  3. You are unlikely to gain as much financially as you first thought.
  4. Lawyers may keep the lion’s share of damages.
  5. Cases can be expensive to prosecute.

I’ve seen great, dedicated and skillful doctors get sued, and those who I wouldn’t let touch my cat never get sued. Medicine and the law often intersect in capricious ways. Just because a doctor is listed in the NPDB (National Practitioner Data Bank, a repository of malpractice payouts and other disciplinary actions) does not necessarily mean your doctor is not skilled, diligent or caring. The opposite is true as well. Perhaps the best way to protect yourself is to read physicians’ reviews online, ask your friends and family and even visit your state’s medical board website to look up your doctor.

But if you feel you must sue, realize this: Most patients sue because they feel the doctor did not care, did not communicate effectively or, when an adverse outcome occurred, did not own up to it and apologize. Studies have shown that doctors who commit these types of errors are more likely to get sued, no matter the outcome of the medical issue, than those who act in an opposite manner.

For more with Dr. Sherer, click here for his podcast and video interviews, or purchase his memoir, The House of Black and White: My Life with and Search for Louise Johnson Morris.

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