Version May 2024
INTRODUCTION — Medical malpractice actions are tort claims in which patients who feel that they received inadequate medical care can sue. The patient becomes the plaintiff, and the physician becomes the defendant.
Obstetricians/gynecologists and surgeons are most likely to be sued among all physicians. In one study, 85 percent of obstetricians/gynecologists, 83 percent of general surgeons, and 79 percent of orthopedists reported having been sued [1]. In a given year, 15 percent of general surgeons, 19 percent of thoracic-cardiovascular surgeons, and 19 percent of neurosurgeons are named in malpractice suits [2]. The majority of those suits, approximately 65 percent, are eventually dropped or dismissed, and 25 percent of cases are settled [3]. Although only 10 percent of cases go to trial, the monetary, emotional, professional, and social tolls of malpractice actions are costly to the defendant surgeon.
Despite the frequency of suits and the maxim that lawsuits are merely a cost of doing business, it is nearly impossible to separate the surgeon's view of himself and his professional competence from the "assault" inherent in the legal process. The world of plaintiffs (who had just recently been patients), lawyers, insurance carriers, expert witnesses, legal doctrines, state and federal laws, and judicial application of law to the facts of the case can be intimidating.
Knowledge of a system otherwise so foreign to the surgeon may better prepare him or her to tolerate the idiosyncrasies of that system and, with heightened vigilance, may perhaps prevent entanglement in a lawsuit ab initio.
This topic will discuss the basic principles of medical malpractice law to provide guidance to surgeons who may be sued. Specific issues related to informed consent are discussed separately. (See "Informed procedural consent".)
BASIC PRINCIPLES
Essential elements of negligence cases — Because medical negligence cases are more sophisticated than simpler tort cases and are less likely to be understood by lay jurors, the court generally requires that both parties hire one or more expert witnesses to explain each side of the case. Through these expert witnesses, the plaintiff must plead and prove the essential elements listed below in order to win a medical negligence action [4].
The plaintiff must show:
●The defendant owed the plaintiff a duty to provide appropriate surgical care.
●The defendant breached that duty by failing to provide minimally competent care.
●The plaintiff was harmed, physically or emotionally.
●The harm to the plaintiff was caused by the defendant's failure to provide competent care.
The defendant's duty typically arises from the existence of a physician-patient relationship [4]. Once that relationship is created, the surgeon then has the duty to provide care that meets the minimum standards set by his peers. The surgeon is liable if he fails to meet that standard, and damages are assigned based upon the losses incurred by the plaintiff.
The plaintiff's expert must define the standard of care and prove all four required elements of the negligence action to the jury: duty, breach, harm, and the causal link between the breach and the harm. One or more experts for the defense then provide testimony to define the duty differently, deny the breach, or, if there was a breach, provide a claim that the harm was unrelated. However, under certain circumstances, the burden of proof may fall on the defendant. (See 'Res ipsa loquitur' below.)
Qualifications of expert witnesses — As noted above, expert witnesses are required by the court to help the jury understand the medical aspects of these cases. Whether an expert will be acceptable to the court varies from jurisdiction to jurisdiction. The court's decision is critical to the case because disqualification may deprive one party of its only expert and may lead to a judgment for the other party.
Historically, an expert had to practice in a geographic area that was the same as, or at least similar to, that of the defendant [5]. This older rule has generally been eroded, in part because medical knowledge is more uniform and available. National meetings, national exams, board certifications, and internet access have tended to standardize care across the country. In addition, there has been a need to broaden the pool of expert witnesses, as local physicians are often reluctant to testify against colleagues whom they know, with whom they work, or from whom they receive coverage or referrals. As a result, courts have expanded the "strict locality," and, consequently, matters of professional judgment are generally examined according to a national standard (on the assumption that surgical judgment is fairly uniform nationwide) [6]. However, resources and facilities are examined according to local or similar locality standards, allowing for equipment differences between communities [7,8].
In deciding if the expert is qualified to appear, the judge looks at various factors, including how much time the expert spends teaching or practicing medicine. However, the expert must be familiar with the type of care at the heart of the suit [5]. Often, the expert must be trained in or practice in the same specialty as the defendant [9,10]. However, as an example, an internist may be allowed to testify against a surgeon about postoperative visits if he is routinely involved in postoperative care.
The fact that two members of the medical profession, sitting on opposite sides of a case, can hold diametrically opposed opinions on a single set of facts leads some to see medical malpractice cases as "battles of the experts" and to see the experts themselves as "hired guns." While some experts may be viewed as mercenaries, practicing providers honestly may differ when asked whether a physician met the standard of care.
Cases that require no expert witness
Res ipsa loquitur — There are instances when there is no need for an expert to make a case of negligence. Res ipsa loquitur (RIL), meaning "the thing speaks for itself" [11], is one such doctrine. The typical RIL case is one in which a patient does not contribute to his own injury, the defendant controls the instrumentality of harm, and the injury does not occur ordinarily in the absence of some act of negligence [12]. When a patient cannot name a specific act of negligence, or even a specific defendant among all the possible providers involved in the case, the court may allow the burden of proof to shift from the plaintiff to the defendant, who then must absolve himself as the cause of the plaintiff's harm [13]. In such cases, the plaintiff does not need an expert.
The textbook example is the anesthetized patient who undergoes an appendectomy and awakens to find he has an ulnar nerve injury, presumably from positioning of the arm [13]. The plaintiff would find it impossible to prove who was responsible because he cannot name a specific act of negligence or a specific actor. RIL shifts the burden of proof to the defendants (ie, surgeon, anesthesiologist, operating room crew, recovery room staff, and transport personnel) to all show their lack of culpability [13], and rebuttal by the defendants may be difficult, the legal equivalent of proving a negative. Some jurisdictions disallow RIL claims in medical malpractice cases, on the assumption that the information is too complex for lay juries to draw their own conclusions. Indeed, RIL may be a problematic doctrine when the injury in question is one that occurs without negligence with a well-known statistical likelihood.
Admission of responsibility — Cases in which the defendant makes an admission of negligence may obviate the need for a plaintiff's expert. The defendant, via her own statement, then suffices as the plaintiff's expert [14]. Legal decisions vary as to what language is sufficient to constitute an admission by the defendant. Thus, a surgeon who believes that he made an error in the care of a patient and who wishes to explain or apologize must be aware of the potential of his statements being used as an admission of liability, and he must manage the content of that discussion with care. (See "Disclosure of errors in surgical procedures", section on 'Apologies'.)
Common knowledge — When information is deemed sufficiently simple that a lay jury can understand the facts, there is a so-called "common knowledge" exception to the need for an expert. Particularly egregious errors, such as retained sponges and wrong-side surgery, are common knowledge cases [15]. As a result, the plaintiff's case may be heard without an expert [15]. (See "Retained surgical sponge (gossypiboma) and other retained surgical items: Prevention and management".)
Informed consent — To preserve autonomy, the ability to control what happens to their bodies, patients must give consent prior to any procedure, and the consent must be voluntary and fully informed. (See "Informed procedural consent".)
The surgeon is tasked with providing the kind of information necessary for a reasonable patient to make the decision whether to proceed. In most jurisdictions, the jury is able to decide what a reasonable patient would want to know and what a reasonable patient would do with that information, so there is no need for an expert.
PHYSICIAN-PATIENT RELATIONSHIP
Requirements and exceptions — Most contracts between patients and surgeons are implied (ie, unwritten) and arise from a course of conduct. The patient seeks care, and the surgeon begins diagnostic or therapeutic maneuvers. However, the contact required to create a relationship is not absolutely predicable.
A simple call to the surgeon's office to make an appointment is usually insufficient, as is a curbside chat between colleagues, one of whom has never seen the patient [16]. Until the relationship and, therefore, the contract is formed, the surgeon may generally accept or refuse a patient as he chooses, possibly even when the patient is urgently in need of care.
However, when there is a preexisting duty, the surgeon may be required to assume the care of the patient. Preexisting duties can arise, for example, as follows:
●Where there is a previous relationship with the patient, particularly if the prior relationship involved treatment of the same illness and was not terribly remote in time.
●When a surgeon's own contractual relationship with an insurer obligates him to treat one of the company's insured.
●When a surgeon has agreed to provide emergency coverage, either on the call list or as a surgical hospitalist.
In addition, there is a federal mandate to treat patients in urgent need of surgical care who arrive in the emergency room. The Emergency Medical Treatment and Active Labor Act (EMTALA) is designed to prevent the "dumping" of emergency patients on another facility by transferring them either before they are stabilized or before the receiving hospital has agreed to accept them [17]. The legislation was enacted to prevent hospitals from summarily transferring problematic or uninsured patients to other institutions. If a hospital and medical staff have the expertise to handle an emergency patient's needs, they must do so. The duty to treat under EMTALA has been expanded to require the receiving hospital and its on-call surgeon to accept patients in transfer so long as they have the expertise to provide the needed care. Failure to provide such mandated care can result in substantial fines for both surgeon and hospital.
Abandonment — Once a physician-patient relationship exists, there is a duty to provide appropriate (non-negligent) care. Further, there is a duty to treat until the relationship is severed by mutual consent or until the immediate need for care has passed.
If the surgeon wishes to terminate the relationship unilaterally, they must do so only after giving the patient notice of the intent to withdraw in sufficient time for the patient to obtain a willing substitute [18]. Failure to provide services until no longer needed or failure to provide reasonable notice to allow substitution may result in liability for abandonment. If a surgeon wishes to terminate the relationship unilaterally, notice should be provided once the acute illness has passed, should be sent by registered mail, and should state the date the surgeon will no longer see the patient, often 30 days hence.
Duties to third parties — In some cases, the surgeon may owe a duty of care to parties with whom he has no contract whatsoever. Some courts have extended that duty to third parties because of the "special relationship" between physician and patient as well as the gravity of harm that can befall foreseeable individuals [19].
That duty to a third party may arise from the relationship the physician has with an existing patient when harm to someone else is the result of negligent care of that patient [20]. Generally, there must be some privity (ie, a recognized legal bond between the plaintiff and the defendant) of contract before a duty of reasonable care is imposed. As an example, when a surgeon failed to warn his patient that her medullary thyroid carcinoma placed her daughter at a statistically greater risk of developing thyroid cancer, the daughter, who was not a patient of the surgeon, successfully sued that surgeon [21]. Usually, the physician must warn the patient, who then has the duty to inform her relatives. In most circumstances, courts do not require the physician to warn the family directly, as doing so without the patient's consent can give rise to claims of breach of confidentiality.
When a communicable disease is misdiagnosed, left untreated, and then contracted by family members, a third-party action may also result. As an example, if a mother's meningitis is misdiagnosed as a simple upper respiratory infection, she is discharged, and her son (an easily foreseeable third party) is exposed, the physician who misdiagnosed the mother's illness and therefore allowed unrestricted contact with her son may be liable to the son for his injuries. In a similar vein, a physician failed to tell a patient of her HIV status when she was diagnosed at the age of 12 [22]. When she later entered a relationship and her fiancé converted to HIV positivity, he then had a cause of action against the physician despite the lack of a recognized legal bond (ie, privity) between the plaintiff (ie, the fiancé) and the defendant (ie, the physician) and the lack of specific foreseeability [22]. Indeed, he was not known to the patient at the time the physician actually failed to warn. The court, however, reasoned that, at some point in the patient's life, it was foreseeable that a companion would appear, even though he was unnamed at the time of the breach [22]. The notion of third-party liability has been expanded beyond the realms of genetic and contagious diseases to environmental exposures as well. For example, a physician's failure to diagnose a patient's Rocky Mountain spotted fever led to liability when the patient's wife, again a foreseeable third party, was exposed to tick bites and also contracted the disease [23].
In addition, a famous psychiatric case, Tarasoff v. Regents of the University of California, declared the necessity of directly warning identified potential victims of a patient's violent intentions [24]. In this seminal case, a psychologist was obligated to warn a patient's girlfriend when the patient confided his intentions to harm his girlfriend [24]. It was insufficient to warn the police, as the therapist had done [24]. The court found that the duty to warn arose from the "special relationship" between the practitioner and the patient, and the duty then extended to foreseeable third parties [24]. Furthermore, the court reasoned that the benefits of protecting someone who is under threat of serious harm outweighed the harm attendant to the breach of confidence [24].
Third-party claims also arise in cases in which patients are medicated and not warned to avoid engaging in behaviors like driving [25]. However, courts have greater difficulty assigning liability to defendant physicians when the exact nature of the harm and the specific identity of the potential third party (eg, a member of the general public) are unknown [26].
DERIVATIVE THEORIES OF LIABILITY
Negligent infliction of emotional distress — There are several causes of action (ie, loss of consortium [the loss of companionship of one's spouse or partner], loss of society, and others) for which family members may recover damages. In addition, if a physician's behavior causes severe mental anguish when witnessed by the patient's immediate family, the family may make a claim for emotional distress. The kind of conduct that would be considered sufficiently outrageous is left to the discretion of the jury. The relationship between physician and patient gives rise to a duty to protect foreseeable third parties (ie, family members) from the distress occasioned by egregious conduct. Claims of distress are fairly easily made and hard to refute, and they appeal to the sympathy of the jury. Because lay jurors are capable of deciding what conduct is sufficiently outrageous, there is no need for an expert witness to make the case. As a result, many courts do not favor suits for negligent infliction of emotional distress and may require the plaintiff to show physical signs of mental distress, such as headaches or sleeplessness, to discourage illegitimate claims [27]. Some jurisdictions will not allow the claim or will only allow it when the family member was in the "zone of danger" and feared for his own safety [28]. Because courts often disfavor this cause of action, a single act or omission is rarely enough to give rise to a successful claim. Rather, it frequently becomes a collection of events that, taken together, constitute sufficiently outrageous conduct. Demeaning comments, yelling in the hallway, and callous behavior in front of a vulnerable patient might not suffice as individual actions, but, collectively, they may be seen as outrageous. The question, then, is how much is enough? Courts that look on this cause of action favorably require that the conduct in question be assessed from the perspective of a reasonable person [27], and courts ask if the resulting emotional distress was reasonably foreseeable to the health care provider, given the totality of the circumstances [29].
NOVEL THEORIES OF LIABILITY — As noted above, four elements must be proved for a plaintiff to make his case of medical negligence: duty, breach, harm, and causation. The latter two requirements have often been more liberally construed in the modern era, and, as a result, some additional legal theories have emerged.
Fear of future injury — In some jurisdictions, fear of yet-unrealized harm can constitute a compensable injury. In such forums, a patient may be awarded damages for harm to which he has been made more susceptible by the physician's negligence. This is the case even though that harm may never occur.
As an example, a patient underwent dilatation and curettage that resulted in a uterine perforation [30]. She claimed a fear of future bowel obstruction, which had between estimated at an 8 to 16 percent chance of occurring in the future [30]. The fear was deemed compensable, and damages were calculated to be between 8 and 16 percent of the award that would have been due if the obstruction were to actually occur [30]. As either the plaintiff or the defendant would receive a windfall in such case, the court was forced to choose between protecting the defendant, who would no longer be liable if the harm arose after the statute of limitations had passed, and compensating the plaintiff, who would be paid even if the feared complication never arose. The windfall was assigned to the innocent plaintiff rather than to the defendant who had already been proven negligent in perforating the patient's uterus [30].
Other cases have dealt with the fear of contracting HIV. Some plaintiffs have been compensated for the fear alone, even when there was no proven exposure to the HIV virus [27]. In one case, two patients' fear of conversion when they discovered they had been operated on by an HIV-positive surgeon was compensable, despite the fact that there were no documented breaks in technique [31]. Courts that allow recovery for fear of conversion have permitted compensation until the fear is extinguished, typically after an extended period of negative HIV testing [31]. Other courts refuse to allow compensation if there is no proven exposure to the virus or if the risk of conversion is very small, holding that the fear itself is unreasonable [27].
Loss of chance of survival — "Fear of future injury" cases weaken the need for proof of harm and substitute a statistical likelihood (sometimes infinitesimally small) that some harm will occur. "Loss of chance of survival" cases, on the other hand, weaken the need to prove the causal relationship between the patient's harm and the physician's negligent behavior. The doctrine allows compensation for a reduction in the likelihood of survival where illness has already reduced the patient's chances [32]. Some courts require that the chance of survival prior to the physician's negligence be greater than 50 percent, since the patient would have been more likely than not to survive except for the actions of the physician [33]. In other words, the plaintiff must show that the physician's behavior probably, not possibly, created the harm (ie, death). Other jurisdictions, by contrast, allow any reduction in survival, whatever the statistics associated with the original illness, to be compensated [33]. A typical case is one of cancer misdiagnosis in which the disease carries a fixed mortality that is further reduced by the physician's delay. Thus, the estate of a deceased patient with lung cancer whose chance of survival of 39 percent was reduced to 25 percent after a delay in diagnosis was awarded damages of roughly 14 percent of the value of his life in toto [33]. The result is that even patients with minimal chances of recovery from their underlying malignances can be compensated for loss of that chance. Courts following this approach contend that the loss of even a small statistical chance of survival is still of significance to a patient [33]. In addition, courts suggest that the doctrine helps to prevent neglect of patients for whom the original outlook for survival is bleak [33].
DEFENSES
Standard defenses — Unless there is an admission of responsibility, the defendant mounts a defense to the plaintiff's claims of negligence. Standard defense tactics include the hiring of an expert who may define the standard of care differently than the plaintiff's expert, refute the notion that the defendant breached his duty of care, or deny that a relationship exists between any breach of the standard of care (of which the defendant might actually have been guilty) and the harm actually suffered by the plaintiff.
Other defenses — Other affirmative defenses may also be available to refute the claim. These include invoking good Samaritan acts, statutes of limitations, comparative negligence, and exculpatory clauses.
Good Samaritan acts — Good Samaritan acts are designed to protect volunteers who come to the aid of victims in an emergency. The help of volunteer professionals is valuable to society, and shielding such volunteers from liability, except for willful or wanton acts of wrongdoing, encourages physicians to offer assistance. Removing the threat of liability for simple negligence, in theory, encourages physicians to intervene despite a lack of any obligation to do so. The protection has traditionally applied to actions outside the hospital, perhaps on the highway or in the wake of a natural disaster. It has been expanded in many jurisdictions to include intervention in the hospital itself [34]. A passing obstetrician called into a laboring patient's room to assist with an emergency delivery may be protected if he owes no duty to the patient to intervene [35]. However, he will not be shielded if the patient is his, if he serves the hospital as the obstetrician or surgeon [36] on call for emergencies, if he bills the patient for his services, or if his acts of negligence are wanton (in reckless disregard for the patient's safety) or willful (inflicting intentional harm) [35].
The definition of emergency varies from state to state. Most courts will look favorably on circumstances that seem emergent but later turn out to be routine [37]. Many will accept urgent situations in which patient welfare is promoted by intervention, as when a surgeon is called urgently to assist in an operative procedure on an anesthetized, open patient with an unexpected finding. Others refuse to extend good Samaritan protection to hospital premises at all, noting that the same constraints do not apply in the hospital as on the highway [38]. Further, courts note that a patient has expectations of non-negligent care on hospital premises, supplied as the physician is with equipment and personnel [39].
When a volunteer physician does undertake the medical rescue of a patient, he may not abandon the patient until the emergency has ended or until the patient's care has been duly transferred to another caretaker, perhaps an emergency medical technician (EMT). It is assumed that a rescue in progress discourages others from volunteering, and thus the good Samaritan is not allowed to summarily abandon the patient to his fate, having perhaps deprived him of the services of other volunteers.
Statutes of limitations — Statutes of limitations exist in almost every state and are designed to encourage filing a claim before evidence grows stale or is lost; parties and witnesses may move, forget, or die, and paperwork may be lost. Without such statutes, insurance companies, such as malpractice carriers, would also otherwise find it hard to predict losses or calculate needed reserves. These statues may act as a defense to a suit that is filed later than statutory time limits allow.
Specifically, the statutes require cases to be filed within a fixed period of time. The time is set arbitrarily by the legislature, and, when it has passed, the plaintiff can no longer gain access to the courtroom, even if he misses the deadline by a day. In most jurisdictions, the deadline for malpractice actions is between two and four years, but the time point when the countdown commences varies. In some states, the clock begins to run at the time of injury. In others, it starts when the patient knows or, through the use of reasonable diligence, should have known that harm had occurred. In still other jurisdictions, the clock begins to run only when the patient actually knows that the physician's actions were negligent.
The rules for minors typically have allowed the child to reach the age of majority before the limitations period begins to run, and the plaintiff then has a statutory amount of time after reaching majority in which to bring the suit. Similarly, for patients who are incompetent, the running of the statute is tolled until the disability has resolved.
There are exceptional circumstances in which these statutes do not apply, including a retained foreign body (eg, a sponge) after abdominal surgery or a pregnancy after sterilization. Because the evidence does not grow stale, the statute of limitations fails to serve much of its purpose in such instances. In addition, fraudulent concealment on the part of the physician, designed to prevent discovery of error, will toll the running of the statute until discovery of the fraud, and, in the case of fraud, the statute of limitations may be as long as five years from the date that the patient learns the truth.
Because statutes of limitations arbitrarily bar a plaintiff's ability to bring an otherwise valid suit, there have been many creative attempts to extend the time limits by convincing the court that the clock had not begun to run at the time of injury or at the time of discovery, but, rather, at some later time. As an example, a continuing course of treatment with the defendant physician may toll the running of the statute until the treatment actually ceases. The physician's ongoing participation in the patient's care creates a situation in which the patient is unlikely to question the physician's advice or obtain a legal opinion. It may be hard to predict exactly what kind of ongoing contact creates a continuing course of treatment. A phone call, a visit to the physician's partner within the same clinic, a visit to the same physician but for a different illness, or refills of a prescription for birth control pills may all indicate an ongoing relationship. Indeed, there can be gaps of several years between patient visits, but courts may still consider there to have been an ongoing relationship [40]. In addition, an ongoing failure of a physician to warn a patient may also constitute a continuing course of conduct that tolls the running of the statute. For example, a pathologist, who read a specimen as benign, harbored doubts about the true nature of the lesion, and failed to alert the treating physician of such concerns, was found to have engaged in an ongoing course of conduct [28]. The time during which he could be sued was, therefore, extended until the patient discovered the mistake [28].
The statute of limitations that is typically applied to a medical negligence action may not apply to a wrongful death action, even years after the negligence actually occurred. If a patient's cancer diagnosis, for example, is delayed and the delay ultimately leads to the patient's death, the statute of limitations may begin to run not at the time of the misdiagnosis or its discovery by the patient but, rather, at the time of the patient's death.
Comparative negligence — A defendant may affirmatively claim that the plaintiff contributed to his own harm. Under an application of the rule of comparative fault, such conduct could be used to relieve the physician of all liability if the patient was found to have been at least 50 percent responsible for his own harm. Courts reasoned that in such cases it was more probable that the patient caused the injury than that the physician did. Again, seeking greater certainty of causation than mere possibility, courts declined to assign liability to the physician at all. In many jurisdictions in the modern era, however, a patient's contribution to his own harm simply acts to reduce the measure of damages by the percentage for which the patient is responsible [41].
Note that pretreatment illnesses, such as preexisting diabetes or heart disease that the patient has not managed well prior to the defendant's involvement, will not be considered as negligence by the patient for purposes of comparative fault [41]. Bad habits simply create the patient profile that is presented to the surgeon, who then takes the patient as he finds him [41]. He must exercise that care and skill applied by an ordinarily prudent surgeon faced with a similar patient [41]. Patients often present for care with a variety of self-induced ills: cigarette use, poor dietary habits, and sedentary lifestyles. Courts will not allow those choices to relieve the physician of his duty to treat the presenting illness appropriately. On the other hand, a patient's post-treatment habits may indeed reduce the measure of his damages when he fails to monitor his blood sugars, take his medications, or modify his diet [41]. Failure to follow a surgeon's advice in the postoperative period may be deemed comparative negligence and may offset the monetary worth of the surgeon's negligence [41].
Exculpatory clauses — In an attempt to avoid litigation from the outset of a relationship, some physicians and hospitals have asked patients to sign waivers of liability prior to treatment. These exculpatory causes stating that the patient will not sue in the event of negligence would then be used as a defense if suit were later filed. Courts, however, have universally found such blanket waivers of the right to sue for medical negligence to be void as against public policy. They are the result of a relationship that, by its very nature, involves unequal bargaining positions. Patients are often vulnerable and afraid when they are ill and in need of care, and physicians, by virtue of their training and licensure, are the only ones in a position to provide those services.
Requiring a waiver of legal rights as a prerequisite to delivery of care creates a situation that contains an element of duress [42]. It is unlikely that patients could readily "shop" for a different physician who would not require such a waiver, and a patient's situation might not lend itself to searching for another provider. Indeed, the patient may be too sick or too frightened to challenge the physician on whom he depends. Moreover, if one physician or institution were allowed to require such waivers, it is highly likely that all providers would require them. In short, patients would have little meaningful choice. Waivers have been held invalid even in teaching institutions where services are provided free by students and when that arrangement is known to and accepted by the patient in advance [43]. Patients are simply not permitted to completely sign away their rights to legal redress against health care providers.
Unlike complete waivers, some partial waivers are allowable, as when a patient refuses transfusion, executes a signed release, and has a complication that might have been handled but for that refusal [44]. The patient may still successfully sue for damages if the surgeon negligently creates the situation in which blood is required in the first place, but the patient may not recover for the harm that results from refusing to be transfused [44].
Patients also may be able to waive some rights and agree, for example, to arbitration of any disputes rather than a jury trial, so long as the language of the contract is comprehensible and not hidden in the body of the document in small print [45]. Delivery of care, however, cannot be dependent on the patient's willingness to sign the partial waiver, and there typically must be a reasonable period of time in which the patient may rescind the agreement, perhaps 90 days after the patient is discharged from the hospital.
RECORDS, FRAUD, AND CONFIDENTIALITY
Breach of confidentiality — The language of the Hippocratic Oath requires that a physician keep secret those facts divulged by patients while in the care of the physician [46]. Inherent in the physician-patient relationship is the transmission of sensitive information, the receipt of which assists in the provision of quality care. The secondary release of that information to others could embarrass the patient or otherwise place him at a disadvantage. The possibility that the information might not remain protected could inhibit disclosure to the physician and lead to an incomplete picture of the patient's health status. Fear of disclosure has been heightened further by use of electronic records and their transmission with the push of a single button. Federal guidelines in the Health Insurance Portability and Accountability Act (HIPAA) attempt to keep medical records from falling into the wrong hands and then being used inappropriately to affect decisions about insurance, employment, and the like [47].
State legislatures have also codified the duty to keep professional confidences and have made violations of the confidential relationship (by divulging patient communications) a tort for which damages may be recovered. There are some exceptions, as legislatures often mandate disclosure when the benefits of confidentiality are outweighed by a greater public good that attends to disclosure. Exceptions include a requirement to report certain communicable diseases, gunshot wounds, and child or elder abuse.
Disclosure of a patient's treatment information to his health insurance company is allowed by the terms of the contract between the patient and his insurer. Information that can be disclosed without additional patient consent is minimal and includes facts relevant to the payment of insurance claims: current diagnosis, treatment, and the dates and costs of treatment. Unnecessary, unauthorized disclosure of information, particularly sensitive information, can result in liability. For example, if a physician, after evaluating a patient for a stress-related illness, tells the insurer that the patient's HIV-positive status or his ethanol use is the cause of his stress, the physician may have breached a confidential relationship. Unauthorized publication of pictures of a patient in a clinic's waiting room might also be a sufficient cause to constitute an invasion of the patient's privacy [48]. If there is a question about whether or not to disclose information, it is best to obtain written, explicit authorization from the patient for that disclosure.
Surgeons and their staff must be cautious about leaving messages on family answering machines, thereby alerting others to a patient's visit to the office or informing others of test results. The physician must be particularly careful about discussing pregnancy, birth control, or HIV status with the patient's friends or family members who are not expressly authorized by the patient to receive such information. Adult patients have been shocked to find that physicians' offices have left the results of pregnancy tests or appointments at abortion facilities with their mothers [49]. The doctrine of respondeat superior holds the surgeon responsible for missteps when his office staff makes such unauthorized disclosures. In-office training is important in codifying with whom and about what the surgeon's staff may converse, and it is a mistake to assume that families or other caregivers are implicitly authorized to receive a patient's medical information.
Concealment of errors and fraud — Medical records must never be altered or amended after their entry. While it is significantly more difficult to change an electronic medical record entry once it has been finalized, any handwritten records or notes can theoretically be tampered with. It may be tempting, having received a request to produce records, to modify a note to better clarify what the surgeon was thinking at the time the note was originally written. However, alteration may be viewed by courts as fraud or concealment, and, as noted, the statute of limitations will not begin to run until the fraud has been discovered. Even without that penalty, alteration of records will often lead a jury to conclude that the surgeon believes himself to be guilty. If a physician wishes to amend the record to explain his choices and actions, he may do so in a separate note, dated and timed on the day the new note is written, but the original note should never be touched.
In verbal communication with the patient, the surgeon may not dissemble (ie, conceal his true motives, feelings, or beliefs). To know he made a mistake, and then to misrepresent his actions with the intent to deceive the patient, constitutes fraud. This, too, will toll the running of the statute of limitations until the fraud is discovered. There are also ethical concerns about physicians' keeping of information—even self-incriminating information—from patients. The Joint Commission has issued mandates for disclosure of adverse or unexpected outcomes to patients [50]. Disclosure of errors requires fairly precise language, lest the surgeon admit liability. The need for both disclosure and self-protection may make the discussion difficult, and the surgeon should seek help in arranging the discussion. (See "Disclosure of errors in surgical procedures", section on 'Apologies'.)
Traditionally, courts have not considered silence or passive nondisclosure to be the legal equivalent of constructive fraud in this context, but that may well be changing in a climate that prizes full disclosure of medical facts.
SUGGESTIONS FOR THE SURGEON WHO IS SUED — If a surgeon is sued, he will receive notice when served with a summons and complaint, often at his office. Upon receipt of service of process, the following steps should be considered.
●The surgeon should notify the medical malpractice insurance carrier.
●If the surgeon is employed, they should notify their employer, who will then let its carrier know.
●Notice to the carrier must be given promptly, as the terms of most insurance contracts require early notification. Failure to provide information to the carrier in a timely fashion may violate the terms of the contract and vitiate coverage.
●Once the carrier has been notified, it will appoint a defense attorney who will then contact the surgeon.
●The surgeon should cooperate with the insurer and the attorney fully when asked for records, questioned about the details of the case, or asked to appear for depositions. Failure to cooperate may also violate the terms of the contract and void coverage.
●Any request for medical records in a case that was problematic should prompt the surgeon to notify the employer and insurer of a potential suit. In this case, there is no need to wait until the case has been filed, and, indeed, notice of worrisome outcomes and potential fallout is favored by carriers.
●Once the surgeon has received a request for records in a problematic case, and certainly once a surgeon has been sued, no further contact with the patient or family is advisable. At that point, it is unlikely that any explanation will forestall a suit. Further, there is a risk that anything the surgeon says may be misheard or taken as an admission.
●If a surgeon discusses a problematic case with an unhappy patient or family prior to the filing of a suit, the substance of the conversation should be included in a chart note, dated and timed contemporaneously with the conversation. In order to avoid self-incrimination, the surgeon's language should reflect sympathy but not admit liability, as insurers prefer to be able to defend effectively. The chart note should include reference to the words the surgeon chose to use and name those who were party to the conversation.
SUMMARY
●Medical malpractice actions are tort claims in which patients who feel they received inadequate medical care can sue. Surgeons have the highest risk of being named in a malpractice suit. A surgeon who has been sued should expect some second-guessing, anxiety, and sleeplessness, all of which are typical. When a patient accuses a surgeon of doing his job poorly, it becomes a very personal matter. (See 'Introduction' above.)
●For a plaintiff to win a medical negligence action against the defendant, the plaintiff must prove that (see 'Essential elements of negligence cases' above):
•The defendant owed the plaintiff a duty to provide appropriate surgical care.
•The defendant breached that duty by failing to provide minimally competent care.
•The plaintiff was harmed, physically or emotionally.
•The harm to the plaintiff was caused by the defendant's failure to provide competent care.
●Most contracts between patients and surgeons are implied (ie, unwritten) and arise from a course of conduct. Once established, the duty to treat continues until the relationship is severed by mutual consent or until the immediate need for care has passed. (See 'Physician-patient relationship' above.)
●Expert witnesses are required by the court to help the jury understand the medical aspects of these cases. However, there are instances when there is no need for an expert to make a case of negligence, such as when "the thing speaks for itself (res ipsa loquitur)." (See 'Basic principles' above.)
●Standard defenses use expert testimony to define the standard of care differently than the plaintiff's expert, to refute the notion that the defendant breached his duty of care, or to show that there is no relationship between any breach of the standard of care that may have occurred and the harm actually suffered by the plaintiff. Other defenses may also be available to refute the defendant's claims. (See 'Defenses' above.)
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