Medical negligence is an act, or the failure to act, by a medical provider within the medical care of a patient that is not consistent within the accepted standard of care.

For negligence to have occurred, the following elements must be present:

Duty -

A duty was owed from a medical provider to a patient within an established provider/patient relationship.

Most states recognize that a physician does NOT owe a duty to a third party or non-patients. In some states, an exception to this exemption is made when a third party poses a threat to patient or may negatively affect the treatment of a patient.

Breach of Duty -

The medical provider failed to act within the accepted standard of care.

Injury -

An injury must have occurred as a result of the breach of duty. There must be evidence to support that an injury occurred, such as effects form a treatment or procedure.

Proximate Cause -

The breach of duty must be proved to be the direct cause of the injury. An event that is considered to be the direct cause of an injury is one that, if avoided, the injury would not have occurred.

Damages -

It must be proven that the plaintiff incurred damages as a result of the breach of duty. If so, compensation will be due to the plaintiff.

Negligence claims are characterized as either general liability or medical professional liability.

General liability claims involve occurrences that are caused by hazards within the environment, rather than the judgments or actions of a medical provider.

Example:

If a patient slips and falls on an unmarked wet floor and injures themselves, the practice in general would be liable for the injury and not a specific provider.

Medical professional liability claims involve occurrences that are the result of negligence within patient care.

Example:

If a tool used during a surgery was left inside a patient after the surgery concluded and caused an infection, the medical provider would be held liable as the damages were a direct result of the action of the provider while performing a procedure.

Expert Testimony

Being that negligence claims center around an accepted "standard of care", expert testimony is required to help define what the standard of care would be for a particular situation, and if there was a deviation from that standard.

Expert testimony is provided by an experienced licensed healthcare professional, with considerable education and training, and within the same specialty of the defendant.

Defendants may also use expert witnesses to confirm that the standard of care was met.

Provider Defense of Negligence Claims

Affirmative Defense -

Used by defendants to prove that a patient's injury/condition was NOT the result of physician negligence, but from other factors.

Assumption of Risk -

Defense used to demonstrate that the patient/plaintiff voluntarily acknowledged and accepted a risk associated with a procedure or action.

i.e. Smokers acknowledge that smoking is hazardous to their health by reading the warning labels on the packages, however still choose to smoke.

A defendant must prove that the patient was aware of and understood any risk involved and voluntarily accepted the risk.

For procedures that carry significant risk, patients should sign authorization forms in which they acknowledge that all risks had been explained to them and that they accept those risks and choose to carry on with the procedure.

Contributory Negligence -

Defense used to demonstrate that the plaintiff's behavior was a contributing cause of the injury.

If it is proved that the patient was fully, or even partially, at fault for the injury, the defendant will NOT be liable for any damages.

Comparative Negligence -

Similar to contributory negligence in that the defendant attempts to demonstrate that the plaintiff's behavior contributed to causing the injury.

However comparative negligence allows a plaintiff to still recover damages if the physician is found guilty of negligence, the amount recovered would be based on the amount of the defendants fault in causing the injury.

i.e. A patient may experience an injury as the result of negligence, however the condition worsens because the patient ignores it and does not have it treated.

Statue of Limitation -

Negligence must be brought to attention within a specific timeframe from the discovery of the injury. If too much time has passed, witnesses may not be able to accurately recall what took place during the time of the injury.

Denial -

Defense used by defendants to force the plaintiff to prove that the defendant was negligent. When a plaintiff claims negligence, they assume the burden of proof.

Many times a physician will deny claims of negligence and leave it up to the plaintiff to present sufficient evidence to convince a jury that the defendant is guilty of negligence.