Part of being a doctor is taking on certain responsibilities of the profession, a concept that dates back to the first written laws in the Code of Hammurabi. Doctors were not expected to cure every patient; instead, these early laws set to establish some base level of care that doctors were required to follow to protect patients.
In the United States, medical malpractice law started to regularly appear in the 1800s and has become increasingly common. These historical malpractice cases have defined the level of care expected from doctors today, a level that continues to change as new procedures are developed, new medical technologies are introduced, and new ways of caring for patients become available.
This article and its subsections will cover the following topics:
- Why do we need medical malpractice law?
- The history of the standard of care and medical malpractice
- Medical liability and breaching the standard of care
- How is the standard of care developed today?
- “Standards” of care
- Doctor ethics
- How doctors avoid malpractice liability
- Determining physician competency
- Understanding the specifics of medical care guidelines
Why Do We Need Medical Malpractice Law?
The purpose of medical malpractice litigation is to create an effective, functioning health care system that protects the rights of both the patient and the health care provider. Malpractice litigation helps the patient and health care provider settle issues of liability for injury by examining the duties and assumed responsibilities of each party. In short, medical malpractice exists because patients and health care workers agree that there is a right way and a wrong way to practice medicine and that both parties must do their duty to make medicine effective and safe. A patient who purposefully withholds information about their medical history may not be able to hold a doctor liable for an injury that resulted from that omission.
Medical malpractice occurs when a doctor makes a negligent mistake. Malpractice is not a given for all medical complications or procedures that do not turn out as expected. Doctors facing uncontrollable circumstances or incurable conditions can not be held liable for failing to control those conditions or failing to cure a patient. Malpractice only occurs when doctors make a negligent mistake, or in legal terms, when doctors “breach the standard of care.”
Doctors cannot provide excellent care to some patients but neglect other patients; they are legally required to provide a certain level of care to all of their patients. This level of care called the “standard of care”, means that doctors must treat patients in a way that any other reasonable doctor in their position would treat a patient.
If a patient has a severely weakened immune system, it is expected that the doctor will take steps to prevent that patient from becoming further infected. The doctor may limit other health care workers access to the patient and generally sterilize the environment around the patient to protect against infection. If a doctor failed to follow standard protocol and left the patient in a room full of other sick patients, or if the doctor re-used medical equipment without sterilizing it and the patient suffered, that doctor may be liable for malpractice. Patient injuries caused by physicians are known as “iatrogenic” injuries.
History of the Standard of Care and Medical Malpractice
From the first laws ever written in the Code of Hammurabi through Roman law to modern cases in the courts today, societies have continued to redefine what it means for doctors to provide acceptable treatments to their patients.
In the last fifty years, there have been three major medical malpractice cases that have impacted the standard of care in the United States in big ways.
In a 1985 case of malpractice, a woman received an operation for a small bowel obstruction. The doctor followed up with the patient immediately after surgery and then left for the night. Though the patient showed abnormal vital signs and experienced pain overnight, the doctor was not notified and did not check up on the patient. The patient suffered respiratory failure and died in the morning.
After allowing testimony on the national standard of care for a surgeon, the doctor was found liable for the death of his patient. Chief Justice C.J. Robertson who presided over the case wrote,
“Medical malpractice is a legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law. When a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care in the course of services he provides. A physician does not guarantee recovery… A competent physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an undesirable result.” Hall v. Hilbun, Miss. Sup. Ct., 466 So. 2d 856 (1985)
Justice Robertson noted that the standard of care refers to “minimally competent care” or care provided at “minimally acceptable levels.” He notes that the use of the word “average” care in the context of the standard of care is misleading because doctors are not legally required to provide the higher standard of “average” care. Justice Robertson believed that over 50% of doctors would be convicted of malpractice if “average care” was the standard.
The second major case, McCourt v. Abernathy, occurred in 1995. Ms. McCourt visited Dr. Abernathy after developing an infection on her finger from a pinprick while working in manure. Dr. Abernathy cleaned the wound, which did not stop the infection. He eventually prescribed antibiotics and more aggressive treatment, but Ms. McCourt died. Dr. Abernathy was found liable for the death of Ms. McCourt, and the judge's decision set important standards for level of care:
- A doctor who uses a medical approach that is different from some doctors does not mean the standard of care was breached
- The medical expert of the case can disagree with the doctor on trial without consequence; a disagreement does not mean malpractice occurred
- The skill and care needed to diagnose a condition are exemplified by the skill and care exercised by other doctors in the field of medicine.
- A bad outcome does not necessarily mean that the doctor was negligent
McCourt by and Through McCourt v. Abernathy, 457 S.E.2d 603 (S.C. 1995)
The third important case is Johnston v. St. Francis Medical Center, which centered on a patient who had multiple complaints about abdominal pain. The patient was examined by two different doctors the day he came into the hospital, one doctor suspected an aortic aneurysm. The patient died during surgery. Though the plaintiffs of the malpractice case argued that the doctors should have been able to spot the aneurysm earlier, the judge ultimately ruled for the doctors. This case set down precedence that hindsight could not be used against doctors to argue for a breach in the standard of care. Johnston v. St. Francis Medical Center, Inc., 799 So. 2d 671 (La. Ct. App. 2001)
Medical Liability and Breaching the Standard of Care
For a doctor to be liable for breaching the standard of care and committing medical malpractice, three facts need to be true:
- The doctor and patient were in a legally binding doctor-patient relationship
- The doctor breached the standard of care
- The breach in the standard of care resulted in an injury to the patient
If all three components are present in a case, patients have the right to monetary compensation for both economic and non-economic damages. Economic damages are the bills patients need to pay related to the injury, such as medical co-payments or money spent on continued care. Non-economic damages account for the pain and suffering of the patient and put a monetary value to things like mental anguish and loss of a spouse.
Specifics for each will be discussed in subsections of this article.
How is the Standard of Care Developed Today?
A breach in the standard of care comes in many forms; a doctor may make a careless mistake that results in serious harm, like operating on the wrong patient, or the doctor may not possess the necessary competence and knowledge to perform a procedure. Medicine is a self-policing field. Doctors across all the medical specialties set standards for themselves and expect that other doctors in the field will follow those standards.
Standards are not like laws; standards are not voted on or set by policy makers. Instead, a “standard of care” in a medical specialty is to set a precedent of care currently used in that field of medicine. For example: in the 40's and 50's, long hospital stays were equated with good medical care. A woman who gave birth might stay in the hospital for over ten days! Today we know that the longer a patient stays in the hospital, the greater the risk is for infections from other patients and medical errors from all of the extra treatment. These days women who have a vaginal birth might leave the hospital the next day.
As doctors work to keep up to date with medical advances, the standard of care will change. Today it would be just as ridiculous to keep a healthy woman in the hospital for 10 days post-pregnancy, as it would have been to discharge her the next day back in the 40s. In other words, we developed a different standard of care for releasing new mothers from the hospital. As society learns more about what makes for good medical care, doctors will change their practices accordingly. If a doctor told a healthy new mom she had to stay in the hospital for ten days, and that mom developed an infection, she could hold her doctor liable for breaching the standard of care.
All medical procedures come with risks, and medical malpractice laws are not in place to prevent doctors from taking any risks with patients; sometimes assuming the risk and performing a procedure is the best option for a patient. Medical malpractice laws clarify how much risk is acceptable for a patient. Any time spent in the hospital can be associated with an increased risk of infection, but doctors today agree that most women should spend at least one night in the hospital after birth for the sake of the mother's and the baby's health. Doctors also agree that too many days in the hospital for a healthy new mom and her baby can assume too much risk.
“Standards” of Care
The “standard of care” is not just one big rule that doctors need to follow. There can be multiple standards of care for a single medical procedure or medical condition. New surgical techniques might open an avenue for an innovate procedure that can cure patients, but though the procedure becomes a standard of care for the conditions it treats, there may be other treatment options that are equally viable. Often there is more than one way to treat a single medical condition.
Clinical practice guidelines are often used to define standards of care for medical conditions.
Doctors make certain professional and ethical promises before they begin to practice. All doctors swear the Hippocratic Oath and profess the ethical principles of medicine they will abide by in their practice. The oath was first created by Hippocrates of Cos, known as the Father of Medicine, sometime around the 3rd century BC. The oath is best summarized by the iconic “do no harm” quote of Hippocrates, “I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone.” Though not directly included in the oath, the quote embodies its purpose.
Modern medical students no longer appeal to Apollo in the oath or “call all the gods and goddesses to witness” like the original quote requires. But the modern oath, written in 1964, does retain essential features of the original. Doctors swear that they will provide the right amount of treatment, not too much or too little, and that they will defer to others when they do not know the answer. They swear to prevent disease when possible and to always remember that their patients are more than the sum of their symptoms.
But the short, 341-word Hippocratic oath does not begin to cover all of the ethical dilemmas that doctors face today. Should doctors continue end of life treatment if the patient has a chance to recover but the family wants to terminate treatment? Are all doctors morally obligated to treat patients with highly contagious diseases, like Ebola? Should doctors support physician-assisted suicide? Should doctors order unnecessary tests and treatments if the patient requests them?
How Doctors Avoid Malpractice Liability
Defensive medicine refers to a manner of practicing medicine that limits doctor liability. Defensive medicine involves doctors ordering extra diagnostic tests, healthcare visits, and treatments and procedures. Usually, these extra tests and procedures are considered to be unnecessary by the physician and are completed to soothe patients and reduce liability. Doctors can also practice “negative” defensive medicine by avoiding certain patients and procedures. By practicing this kind of medicine doctors hope to reduce doubt that they took every precaution in diagnosing and treating a patient.
According to a survey of physicians by Jackson Healthcare, the third-largest healthcare staffing agency in the country, about 75% of all doctors report ordering extra tests they deem unnecessary in order to avoid lawsuits.
Defensive medicine is both good and bad for patients. Some studies show that doctors who practice defensive medicine are the least likely to be sued for medical malpractice. The more tests and procedures a doctor billed to the hospital, the less likely the doctor was accused of malpractice. These tests may benefit patients by forcing doctors to be certain about diagnoses and treatment plans. On the other hand, Gallup studies have found that one in four healthcare dollars, or $650 billion annually, are spent on defensive medicine practices.
One example of this rise in defensive medicine is the rate of Cesarean sections in the United States. Though the World Health Organization recommends Cesarean section rates between 10 -15% for developed countries, the United States has a rate of over 32%. One reason for this is that birth injuries are among the most cited cases of medical malpractice in the country. Many U.S. doctors choose to perform an unnecessary cesarean section over worrying about medical liability from a birth injury.
Every year in the United States, 15 million patients are given nuclear medicine scans, 100 million undergo CT and MRI scans, and 10 billion have a laboratory test taken. While unnecessary tests can sometimes spot problems that went unnoticed, more often these tests expose patients to excessive anxiety over small conditions that are not problematic. Too many tests can lead to excessive medical care that ultimately harms a patient more than helps.
Determining Physician Competency
The most important way doctors can avoid malpractice liability is by remaining “competent” in their field of medicine. Determining physician competency is built into the licensing and board certification process; doctors must complete a certain level of schooling, take qualifying exams, and meet professional standards for their field of medicine.
The Accreditation Council for Graduate Medical Education (ACGME) determined six basic competencies doctors should have:
- Patient Care that is compassionate, appropriate, and effective for treating health problems and promoting health;
- Medical Knowledge about established and evolving biomedical, clinical, and cognate (e.g., epidemiological and social-behavioral) sciences and the application of this knowledge to patient care;
- Practice-Based Learning and Improvement that involves investigation and evaluation of their own patient care, appraisal, and assimilation of scientific evidence, and improvements in patient care;
- Interpersonal and Communication Skills that result in effective information exchange and teaming with patients, their families, and other health professionals;
- Professionalism, as manifested through a commitment to carrying out professional responsibilities, adherence to ethical principles, and sensitivity to a diverse patient population;
- Systems-Based Practice, as manifested by actions that demonstrate an awareness of and responsiveness to the larger context and system of healthcare and the ability to effectively call on system resources to provide care that is of optimal value.
These basic competencies can be applied to all doctors, but there are certain standards within each medical specialty field that doctors also need to meet.
The ACGME competencies were first created in the late 90s and are still used today. In 2011, the American Hospital Association (AHA) asked its policy boards, governing councils, and committees to review ACGME list and evaluate its usefulness for the 21st century. The AHA added a second list of basic skills doctors need, including:
- Leadership training
- Systems theory and analysis
- Cross-disciplinary training/multidisciplinary teams
- Understanding and respecting the skills of other practitioners
- Population health management
- Palliative care/end-of-life
- Resource management/medical economics
- Health policy and regulation
- Less “captain of the ship” and more “member/leader of the team”
- Empathy/customer service
- Time management
- Conflict management
- Giving performance feedback
- Understanding cultural and economic diversity
- Emotional intelligence
Requirements for doctor competency will continue to change as medicine evolves and changes.