MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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What is Breach of Duty of Care?

If a doctor’s mistake causes an injury, you may be able to recover money for medical bills, loss of income, and pain and suffering. However, the process of bringing a medical accident case to court can be a long and complicated process. A cause of action in most personal injury claims requires showing negligence. As part of a medical malpractice claim, the injury victim may have to show the doctor breached a duty of care to the patient. 

Duty of Care in Negligence Claims

Negligence is the basis for many personal injury claims where someone was injured because of another’s unreasonable actions. In a negligence claim, the injury victim generally needs to prove the following elements: 

  1. The defendant owed the plaintiff a duty of care;
  2. The defendant breached the duty of care; 
  3. The breach caused the plaintiff’s injury; and
  4. The plaintiff suffered harm or damage as a result. 

Just about everyone owes others a duty of care. For example, if you are driving down the road, even if you don’t know any of the other drivers, you have a duty to drive like a reasonable person. If you are driving recklessly and crash into another vehicle, you may have breached your duty of care and may be liable for any damages. 

A breach of the duty of care is doing something that a reasonable person in a similar situation would not do in similar circumstances. A “reasonable person” is not an actual person but something for the jury to decide, whether the defendant acted in an unreasonable manner based on the reasonable person standard. 

Causation means that there was a direct link between the unreasonable actions and the injury. Cause-in-fact means that the event could not have otherwise occurred. This means that someone could be liable for damages even if there were multiple causes of the accident. However, the cause still has to be proximate, or not too far removed that it was unforeseeable.

Finally, in order to recover compensation, the victim has to suffer some kind of harm. Harm can include property damage or personal injury. Even if the plaintiff proved the other elements, without an injury, damage, or harm, the plaintiff cannot recover damages.  

Patient-Doctor Relationship

In a medical malpractice case, the injury victim generally has to prove similar elements as negligence. First, there has to be a duty of care. In a medical malpractice claim, the duty of a doctor, hospital, or healthcare provider may depend on the connection to the patient. 

In most medical malpractice claims, the doctor and patient have a professional relationship that establishes the doctor’s duty of care. A patient usually voluntarily agrees to be treated by the doctor involved. In some cases, even a phone consultation may be the basis for a duty of care. 

There may be specific types of duties owed based on the health profession or practice. For example, a psychiatrist may have a duty to take reasonable measures to protect a person who might be foreseeable harmed by the patient’s mental problems. A pharmacist may have a limited duty of care to fill a prescription correctly but it may be the doctor’s responsibility to warn the patient of hazards, side effects, and contraindications. 

Paramedics and emergency medical technicians (EMTs) may have limited immunity for simple negligence by emergency medical personnel while providing emergency, prehospital services, as long as the personnel acted in good faith. 

A hospital also has a duty of care to patients. Under federal law, hospitals have a duty to provide certain screening and emergency care. A hospital has a duty to provide an examination within the capability of the emergency department (ED) to determine if there is a medical emergency. A hospital also has a duty not to transfer a patient to another facility before stabilizing the patient, unless the patient requests a transfer in writing after being warned of the risks. 

A hospital only owes a duty of ordinary care to non-patients, or visitors who are there to see patients or family members. This is similar to ordinary premises liability, like a grocery store, office building, or restaurant. Generally, a hospital only has a duty to non-patients for damages caused by a hospital’s unreasonable failure to protect against dangers of which the property owner knew about or should have known about. 

Medical Duty of Care

One of the major differences between medical malpractice and personal injury is that there is a different standard of care between doctors and patients. The medical standard of care is generally based on a “reasonably prudent practitioner.” Like the reasonable person, a reasonable doctor is not a specific person or list of actions but it is based on what a reasonably prudent doctor would do given similar circumstances. 

The medical standard of care is based on a number of factors, to show whether the doctor was reasonable or unreasonable in their actions or inaction. Factors in the duty of care standard include: 

  • Degree of skill
  • Degree of care
  • Education and learning
  • Practice area
  • Medical community

Education, learning, knowledge, and practice area all inform doctors about the standard of care expected and how a patient should be treated. For example, the expert opinion of a dentist may be inappropriate when reviewing a brain surgery injury involving a neurosurgeon because the practice areas are very different, with different training, experience, and education. 

The medical community may also impact the doctor’s standard of care. For example, a doctor in a large hospital in a big city may have a lot of options for getting a consultation, diagnostic testing, or specialized treatment. A doctor in a rural area may be much more limited in their resources and a comparison to treatment in a city may not be appropriate.

Deviation From Accepted Standard of Care

In a medical malpractice claim, a jury would hear evidence of the care provided by the doctor involved. To determine whether the doctor breached the standard of care, the jury may hear from other medical experts, explaining how they would handle a similar situation. A medical expert can testify and give their opinion on the doctor’s actions and what the standard of care would be given similar circumstances. 

Accidents and injuries happen in medical care all the time. However, not all injuries are the fault of the doctor. Generally, a doctor is protected from medical negligence if they follow the standard of care. If the doctor did what a reasonable practitioner would do under similar circumstances but the patient suffered an injury, the doctor may not be liable for damages. However, if the doctor deviated from the accepted standard of care and the patient suffered an injury, the doctor could be found responsible. 

Breach of Care by Doctors and Surgeons

In a medical malpractice lawsuit, the injury victim has to show the medical professional failed to exercise the degree of care, skill, and learning as a reasonably prudent medical professional in the same profession would give in the same or similar circumstances. Doctors and surgeons provide a variety of treatments and types of care, some examples of a breach of care could include: 

  • Failure to get informed consent
  • Failure to follow sanitation protocols
  • Failure to monitor a patient during surgery
  • Failure to get a consultation when appropriate
  • Discharging an unstable patient
  • Prescribing the wrong medication
  • Failure to inform the patient of the risks involved in a procedure
  • Failure to keep proper medical records
  • Leaving surgical items behind in a patient’s body after surgery
  • Failure to monitor anesthesia vitals
  • Failure to diagnose cancer
  • Misdiagnosis of the wrong conditions

Expert Witnesses and the Duty of Care

Determining the duty of care in medical malpractice cases generally requires expert witnesses. Even if a juror understands basic anatomy or watches a lot of medical dramas, they do not have what the court considers to be the knowledge, skill, or education to make determinations based on medical treatment. In a medical malpractice case, both the plaintiff and the defendant generally utilize a medical expert witness. 

Affidavit of Merit 

Even before the case goes to court, a medical malpractice case may need an affidavit of merit or certificate of merit from an expert. An affidavit of merit is required by law in many states as a way to reduce the number of lawsuits filed that do not have a legal basis. This is not a full medical expert report but needs to be signed by a qualifying expert medical witness, complete with their curriculum vitae or evidence of their education and experience, including: 

  • Possess a current medical license;
  • Having taught at an academic institution or practiced medicine in a related area to the claim; and
  • Have board certification in a related medical field.

The certificate of merit, signed by the doctor, has to state that there is evidence suggesting the defendant demonstrated negligent care or a deviation from the accepted standard of care that caused an injury. 

Expert Reports and Expert Testimony

Medical experts who review the medical record, discovery evidence, and testimony from parties and witnesses may produce an expert report. The expert report lays out the relevant facts with an opinion by the expert about any deviations from the accepted standard of care and causal relationship to the injury. The plaintiff’s expert report generally supports the injury victim’s claim. The defendant’s report generally supports the doctor or hospital. 

In a trial, the medical experts may testify in front of the jury. This is an opportunity for each side to present their case with medical professionals who can give their opinion on who may have caused the injury. Based on the Federal Rules of Evidence, Rule 702, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.”

Did I Give Informed Consent?

A doctor also has a duty to communicate truthfully about the patient’s medical condition. If the doctor knows about a serious medical condition but does not communicate that information to the patient, it may delay treatment or allow the victim to suffer unnecessary harm. Except in the cases of emergencies, a doctor should not withhold relevant medical information. A patient has the right to make an informed decision about their care. 

Informed consent is an important part of patient care. Physicians owe a duty of care to get a patient’s informed consent, or that of their personal representative, before treating the patient,  conducting surgery, or placing the patient under anesthesia. 

It is the patient who has the right to decide what happens to his or her body. The doctor can give their opinion on the best option, treatment suggestions, and risks and benefits involved. However, the ultimate decision belongs to the patient. The doctor has a duty to provide the patient with enough relevant information to make an educated decision. The necessary information includes: 

  1. The condition being treated;
  2. The nature and character of the proposed treatment or procedure;
  3. The anticipated results from the proposed treatment or procedure;
  4. The recognized alternative forms of treatment; and
  5. The recognized serious possible risks, complications, and anticipated benefits involved in the treatment, alternative forms of treatment, and non-treatment.

More Information About the Breach of Duty of Care in Medical Malpractice Claims

The duty of care in a medical malpractice claim can be a complicated topic. Even after reading this information, you may have even more questions. It can be difficult to give a broad explanation for how the breach of a duty of care works in a medical error lawsuit because every situation is unique. The specific facts and circumstances that factor into your case can include: 

  • Which medical professionals were involved
  • Applicable standards of care
  • Role of the hospital
  • Type of medical procedure
  • Cause of the injury
  • Informed consent involved

An experienced medical malpractice attorney can review your case, get a medical expert’s review, and help you understand your legal options to file a claim against the doctors, hospitals, and caregivers. Contact experienced personal injury trial attorneys who have successfully represented medical error victims and their families to recover financial compensation. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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