Kenton H. Steele, Esq

What are legal standards used to define medical malpractice? How do judges and juries decide which medical errors entitle a patient to bring a lawsuit? If a plaintiff alleges medical malpractice, what must he or she prove to recover damages? This article will provide an overview of what must be present for a malpractice claim to exist.

The idea that physicians are responsible for avoidable injuries to patients is nearly as old as the practice of medicine. The Code of Hammurabi sets out penalties for medical errors: “If the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die…cut off his hands.” Thankfully, our system for addressing medical errors has changed significantly since Babylonia’s 3800 years ago.

The foundation for the modern approach to addressing medical malpractice was set in ancient Rome, where a person injured by a doctor could seek monetary compensation for economic losses and pain and suffering. The Roman system was the basis for English common law, which was the basis for the American legal system.

To win a malpractice case, a patient is required to prove 4 elements:

• the existence of a duty of care owed to the patient by the doctor

• a breach of this duty in the form of a departure from the standard of care

• a causal tie between the breach and an injury to the patient, and

• damages in the form of monetary costs, physical pain, and mental suffering.

To prevail, a plaintiff must show that it is more likely than not that each element is present.

With the first element, a doctor must exercise reasonable care in providing treatment to the patient. This is typically the most straightforward element for a plaintiff to establish. Although there are some exceptions, a duty is generally presumed to exist when a doctor treats a patient.

To establish a breach of duty, a plaintiff must offer testimony from a qualified expert to explain the standard of care required and how the defendant failed to meet that standard. The definition of 

 can vary. In general terms, it refers to the care that a doctor is reasonably expected to provide under the circumstances in the case. Importantly, the standard of care requires that treatment decisions are reasonable. Meeting the standard of care does not require that decisions are made with foresight and perfect accuracy. Doctors may disagree about what treatment option is best. Such disagreements do not mean that 1 treatment option is within the standard of care and the other is not.

A departure from the standard of care is legally insignificant without an injury. To establish the third element of a malpractice claim, a plaintiff must show a direct tie between a breach of the relevant standard and an injury. Expert testimony can usually establish that an injury would not have occurred “but for” the identified breach of the standard of care.

Finally, a plaintiff asserting a malpractice claim must show that the injury incurred is compensable. There are 2 recognized types of injury, or damages. First, there are economic damages, the monetary costs resulting from an injury. This includes the cost of subsequent medical care and lost wages. The other component is a plaintiff’s noneconomic damages, which comprise the pain and mental suffering associated with an injury. This type of loss is much more difficult to evaluate. What is the dollar amount that compensates someone for discomfort? What is the monetary value of the anxiety a patient experiences? The answers to these questions are entirely subjective. Ultimately, if a plaintiff can show that the other elements of their claim are present, a jury will determine the amount that represent fair compensation for an injury.

The framework explained in this article is designed to balance society’s interest in compensating persons wrongly injured by medical errors against the need to ensure that doctors are not held to an impossible standard of perfection. This system has been developed over thousands of years. It is unclear if we will ever find the perfect way to respond to medical complaints, but we can be certain that the justice system will continue to evolve.

 is an attorney in the Columbus, Ohio office of Reminger Co., LPA. He specializes in malpractice defense and insurance litigation. Please contact him at KSteele@reminger.com with any feedback or comments on this column.

Articles

Required elements to prove a claim include breach of duty and damages.

How is a medical malpractice claim defined?

How much time after the occurrence of alleged malpractice does a patient have to file a lawsuit?

As with many things in the medical-legal world, the answer is, “It depends.” However, some general principles may provide an understanding of what a statute of limitations is and how it functions. This article sets out these general principles and provides an overview of some legal doctrines that can impact the time a patient has to file suit in the event of alleged malpractice.

Like all lawsuits, a claim alleging medical care was negligently provided must be filed within a specified period of time after the event that is the basis of the lawsuit. The law that creates this deadline is a “statute of limitations.” A lawsuit filed after the applicable statute of limitations has passed can be dismissed without considering the merits of the case.

Although dismissing a meritorious claim simply because it is too late may seem harsh, statutes of limitations serve useful functions. First, disputes should be raised and resolved in a timely manner. If a person has a grievance requiring court intervention, that grievance should be raised within a reasonable time. Also, as years pass, key witnesses forget and important evidence is lost. Imagine a malpractice lawsuit based on care provided in 2010. What is the likelihood the physician remembers the patient? Will complete records be available?

Allowing “stale” claims could make it impossible for the accused to prove their innocence.

The length of time provided by a statute of limitations on malpractice claims varies from state to state. Most states have limitations periods that fall somewhere between 1 and 3 years. The time limit on malpractice claims is typically shorter than on other types of claims. For example, a claim based on a breach of contract can be made a decade or more after the contract was created. Part of the explanation for this difference is the ongoing effort to control the rising cost of malpractice insurance and health care in general—the thinking being that if the time to bring a malpractice claim is reduced, there will be fewer claims. If there are fewer malpractice claims, the cost of insuring against this type of claim should be lower. The effectiveness of this approach is the subject of ongoing debate.

Knowing the length of a limitations period is only half of the equation for determining the date by which a claim must be filed. The other half is identifying when the timer starts. In a case involving a car crash, the statute of limitations clock begins to countdown immediately after the vehicles collide. However, an injury resulting from medical care may not become apparent until years after the treatment occurs. This gap in time between care being provided and an injury arising has led courts to adopt “the discovery rule.” Under this rule, the time limit to bring a malpractice suit does not begin counting down until the injured person discovers or reasonably should have discovered the injury.

The statute of limitations can also be extended by the “continuous treatment rule.” Under this rule, the time limit to bring a claim against a physician does not begin to run until that practitioner ends treatment for the specific issue that is the basis of the claim. For instance, if a surgeon in a state with a 2-year statute of limitations commits an error during surgery and continues to provide care and treatment to the patient for a year following the procedure, the patient will have 2 years from the last date of treatment to file suit. This rule serves a salutary function. In the event of a medical error, the practitioner can work to remediate the mistake without forcing the patient to choose between continuing treatment or filing a lawsuit. Similarly, patients are protected from unscrupulous practitioners who could inaccurately lead injured patients to believe their condition will improve until the limitations period has expired.

Limits on the time to bring a claim in court are as old as the justice system itself. Understanding these restrictions may allow urologists and other practitioners to quell their concerns that an unhappy patient from the past will reappear as a plaintiff in a lawsuit. That being said, practitioners should consult with an attorney in their jurisdiction if they have specific questions about whether possible claims may be time-barred.

 is an attorney in the Columbus, Ohio, office of Reminger Co, LPA. He specializes in malpractice defense and insurance litigation. Please contact him at KSteele@reminger.com with any feedback or comments on this column

"The length of time provided by a statute of limitations on malpractice claims varies from state to state," writes Kenton H. Steele, Esq.

Malpractice consult: What urologists need to know about statutes of limitations

Nearly every physician receives requests for prescriptions from coworkers or friends. Granting these requests can take the form of “friendly prescribing,” a situation in which a prescription is provided outside a physician’s normal practice. In an attempt to be helpful, care providers can expose themselves to a risk of being sued, losing insurance coverage, and facing disciplinary investigations. Luckily, there are ways to avoid or minimize these risks while still being a helpful friend.

Imagine the following scenarios: A nurse in your office says, “Doctor, can you call in a prescription for my hypertension medicine? I’m out of refills, and my doctor charges me $100 a visit.” Or a neighbor you know well calls and says, “Doc, I have a cross-country flight coming up and a terrible fear of flying. Can you prescribe me 2 Valium for the trip? I won’t have time to schedule a visit with my doctor before my trip.”

In any variation of these situations, the pressures on the physician are the same. An acquaintance is asking for something that the physician can easily give. Refusing this type of request would surely seem like an insult. How can you say no without the implication being “I could help you, but I won’t because I just don’t care enough about you”?

Unfortunately, even setting aside adverse drug reactions that could stem from informal prescribing, providing a friendly prescription can create a variety of medico-legal risks beyond those associated with a normal patient encounter.

Claims may not be covered by malpractice insurance

If an individual who receives an informal prescription suffers an adverse outcome and a malpractice suit is filed, this claim may not be covered by malpractice insurance. The reason is simple: A friend or acquaintance provided with a prescription may not be a true “patient.”

In one tragic story involving friendly prescribing, an emergency department (ED) physician was asked by a nurse for a prescription for Zoloft for her husband, who had been struggling with depression. The ED physician wrote a prescription for 1 month of medication, just long enough for the husband to make an appointment with a psychiatrist.

Two weeks later, the nurse’s husband took his own life. The widowed nurse sued the ED physician for malpractice on the basis that the physician did not consider that increased risk of suicidal thoughts is a complication for patients starting Zoloft. Ultimately, the ED physician’s malpractice carrier refused to provide coverage for the case because the husband was not one of the physician’s patients.

Even when an informal prescription does not lead to an adverse health outcome, it can still create headaches for practitioners. “Hallway medicine” can run afoul of laws and regulations related to the requirement that an in-person evaluation be performed before a prescription is issued. Moreover, the modified or informal practices associated with writing a friendly prescription can lead to disciplinary actions from a state medical board.

In one recent case, a nurse asked a surgeon for a written prescription for an OTC medication. The nurse needed the prescription to use her health savings account for the purchase. The physician provided a partially completed handwritten prescription, leaving it to the nurse to fill in the specifics. A hospital administrator found the nearly blank prescription on a desk, and both the nurse and the surgeon were investigated by their employer and licensing authorities.

This scenario did not even involve a medication that required a prescription. Yet the physician was still subjected to an investigation by the state medical board for issuing a prescription without keeping proper records.

Best practices for friendly prescriptions

It is possible to handle requests for prescriptions without seeming rude and still protecting against exposure to lawsuits or disciplinary actions. The first step is treating the request as if it comes from a real patient. This means conducting an examination and creating a written record of the encounter. Use of an electronic medical record system can be very helpful in this regard. Creating a record that shows the friend was treated like a normal patient reduces the possibility that an insurer will deny coverage in the event of a lawsuit.

If an acquittance needs a prescription urgently and a physical exam is not possible, physicians should create some contemporaneous record reflecting this fact. Such a record may be very useful in defusing any investigation by a licensing authority. Ultimately, failing to take these simple steps while helping a friend with a request for medication could result in proving the truth of the adage “No good deed goes unpunished.”

 is an attorney in the Columbus, Ohio office of Reminger Co., LPA. He specializes in malpractice defense and insurance litigation. Please contact him at KSteele@reminger.com with any feedback or comments on this column..

Here’s how to guard against lawsuits and disciplinary actions.

Kenton H. Steele, Esq

Articles

How is a medical malpractice claim defined?

Malpractice consult: What urologists need to know about statutes of limitations

Why urologists should beware the perils of friendly prescribing