CHAPTER 6 MEDICAL MALPRACTICE

Law, Liability, & Ethics
For Medical Office Professionals
Sixth Edition
Chapter 6
Medical
Malpractice and
Other Lawsuits
Copyright © 2018 Cengage. All Rights Reserved.

Objectives (1 of 2)
• Distinguish between a cause of action for negligence
and malpractice
• List the elements of a medical malpractice lawsuit
• Identify when there has been breach of duty to patient
based on inappropriate standard of care
• Analyze the legal cause of a patient's injury and assess
accountability of the employee
• Give examples of the defenses available to the
defendant
• Identify the legal, moral, and ethical aspects of informed
consent

Objectives (2 of 2)
• Recognize the need for malpractice insurance
• Analyze emergency situations and determine
whether a situation is covered by a Good Samaritan
statute
• Distinguish between invitees, licensees, or
trespassers and the duty of care owed to them for
maintenance of equipment and premises
• Define strict liability in tort
• Identify a product liability cause of action

Practicing Medicine
• The practice of medicine generally held to mean:
– diagnosis, treatment, and/or prescription for prevention or
cure of any human disease, ailment, injury, deformity, or
physical or mental condition
• To practice, a license is needed
• Medical assistants are not licensed or certified to
practice medicine

Negligence or Malpractice?
• Negligence
– not doing something that a reasonable person would do
• Malpractice
– any professional misconduct and implies a greater duty of
care to injured person than reasonable person standard

Elements of a Medical Malpractice Lawsuit
• To have a medical malpractice lawsuit, patient must
show:
– There was a relationship between physician and patient
– This relationship established duty by the physician to the
patient
– The duty had been upheld at a professional standard of
care
– The physician breached duty to the patient
– The patient had a resulting injury
– The physician’s breach was the proximate cause of the
patient’s injury

Relationship
• Relationship between the physician and the patient
is established by contract law
• It must be shown that:
– The patient consulted the physician for medical advice;
and
– The elements of a contract were met:
 Offer
 Acceptance
 Consideration
 Mutual assent

Res ipsa loquitur
• Means “the thing speaks for itself”
• Requires following three conditions:
– Accident would not have occurred if reasonable care had
been used
– The defendant had exclusive control over cause of injury
– The plaintiff did not contribute to the occurrence of an
accident

Informed Consent
• Physicians are often sued for malpractice because
of:
– Failure to adequately inform patients of drug reactions,
possible adverse surgical results
– Failure to adequately information patients of alternative
forms of treatment

Ethical and Moral Implications
• Drugs/procedures are in the research phase and
physicians are experimenting on patients
• Patients do not want to hear bad news from the
physician.
• A patient often does not remember what is said
• A patient may selectively remember comments by the
physician
• The sicker the patient, the less accurate memory for
details of pending treatment
• The less educated the patient, the less accurate the
recall of information

Impact of Medical Malpractice Suits
• It is a devastating experience for physicians to be
sued by patients for whom they have done their
best. Physicians:
– May feel that everyone is pointing a finger
– May feel disgraced in community
– May be afraid that one claim of poor treatment will negate
all the good performed in a lifetime
• Emotional tension increases in the home as a result
of stress.

Economics
• Malpractice crisis contributes to deterioration in the
doctor–patient relationship, and it contributes to
spiraling cost of medical care

Negative Defensive Medicine
• Some physicians:
– Are shying away from treatment of difficult cases
– Refuse to take emergency room duty
– Do not attempt new procedures
– Do not employ new drugs
– Refuse to treat certain classes of patients (primarily
obstetric and orthopedic cases)

Analysis of the Problem
• Objective is injury suffered by the patient
• Subjective is alienation, anxiety, frustration, and
potential anger in the patient

Risk Management Issues in the Medical
Office
• Manage patient relationship
• Professional staff

Lack of Empathy
• Empathy is one level deeper than understanding
• Empathy requires vicariously experiencing the
feelings and thoughts of another person

Fee Discussions
• Some patients fear to initiate subject of fee,
because:
– They fear physician may disapprove of them
– They believe physicians are not involved with finances
– They do not know how to discuss money

Defenses to a Medical Malpractice Cause
of Action
• Five defenses available to a defendant in a medical
malpractice cause of action:
– Statute of limitations
– Contributory negligence
– Comparative negligence
– Assumption of risk
– Emergency

Contributory Negligence
• Any unreasonable behavior on the part of patient
that contributed to case of injury

Malpractice Insurance
• Frequently makes headlines because of rising costs
to health care providers
• Is required for a professional practicing medicine
• Hospitals, health care facilities, doctors, and other
health care employees carry malpractice insurance

Product Liability
• A manufacturer is obligated to provide:
– Adequate directions for use of a product
– A warning of any untoward results

Strict Liability
• Used in product liability cases where:
– The seller is liable for any and all defective or hazardous
products that unduly threaten a consumer’s personal
safety.
• Product is defective and unreasonably dangerous

Premises Liability
• Property owners must observe certain standards of
care for the protection of others, regardless of
whether they come onto the property legally or not
• Persons coming on property are classified as their
invitees, licensees, or trespassers

CHAPTER 6 MEDICAL MALPRACTICE

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CHAPTER 6 MEDICAL MALPRACTICE