Medical Malpractice: It Takes Two, Baby

March 24th, 2011. By Kristine B

If you’ve ever watched any of the seemingly endless supply of medical dramas on television (Grey’s Anatomy, House, Private Practice…) you’ve probably heard the phrase “medical malpractice”—or some variation of it—tossed about threateningly. It’s also a popular plot twist in soap operas—General Hospital fans will recall Dr. Patrick Drake (and his half-brother, Matt) being sued for malpractice. 

Great as it may be for adding intrigue to a plotline, medical malpractice—or at least the true meaning of it—tends to get lost and twisted in the drama. So this week, Pleading Ignorance shines a light on what medical malpractice, otherwise affectionately known as “med mal”, is…

Let’s start with the more technical version: medical malpractice is either an act or failure to act on the part of a health care provider, where that act or omission deviates from reasonable standards of care in the field and causes harm to the patient. Got that? Basically, medical malpractice has two parts. First, the negligence and second, the harm to the patient.

1. Medical Malpractice: The Negligence

The negligence part of medical malpractice is the first part of the explanation above. Negligence is any act or failure to act by a medical professional where the care provided does not meet generally accepted standards of practice. So, what does that mean? It means that person providing the health care—a doctor, nurse, dentist or any health care professional—does not provide care that meets accepted standards.

That’s important, because there’s a difference between a medical professional being negligent and a medical professional who has done all he can to help a patient but still can’t find the answers.

Say a patient, we’ll call her Sarah, goes to the doctor with a variety of symptoms. Dr. A runs test after test, has follow-up visits, consults with other doctors and still can’t determine the cause of Sarah’s problems. Finally, after a long process, Dr. A determines that Sarah has cancer and the cancer has progressed too far to be operable. Dr. A is not necessarily guilty of medical malpractice because he has met an accepted standard of care by sending Sarah for tests, scheduling follow-up appointments and so on.

Now, say Sarah goes to Dr. B. Dr. B listens to Sarah for a while but ultimately decides that her pain is in her head. So he sends her home without requesting any tests and does not offer to follow up with her. Sarah repeatedly sees Dr. B with the same complaints, but is always dismissed by the doctor. Eventually, a different doctor diagnoses Sarah with cancer, but by then the cancer is not treatable. Dr. B may be guilty of medical malpractice for not meeting a reasonable standard of care in Sarah’s situation.

Whether or not a doctor is negligent depends on whether a reasonably competent doctor who has the same specialty would have conducted herself in the same manner if she had been treating the patient.

Of course, a reasonable standard of care also depends on the location of the medical provider. Doctors at a small town may not have access to the same resources as doctors in a large, metropolitan or teaching hospital—and that can play into the extent to which they can be expected to provide the same level of care—particularly in critical or emergency care situations. Think of a patient who has a very rare disease and who needs to travel out of state for specialized treatment—in that situation, the patient’s local doctors are able to consult with the out-of-state medical team to best plan a course of treatment. In an emergency, a doctor has to work with what he has available at hand, so the standard of care can only be measured by what another doctor in the same location would done to treat the patient.

Of course, it’s not just the medical diagnosis that results in medical malpractice claims. There are many problems that can happen in the medical profession that result in malpractice lawsuits. Those include surgical errors (like where the wrong knee is operated on), using equipment that hasn’t been sterilized, reusing equipment that is meant for a one-time use (such as needles), ignoring patients who are in distress in a hospital and failure to warn about known risks.

2. Medical Malpractice: The Harm to the Patient

The other part of medical malpractice is that it causes harm to the patient. It isn’t medical malpractice if no harm is done—you may not like the doctor, his bedside manner, or his treatment plan, but if there is no harm, there is no malpractice. Taking our earlier hypothetical patient, Sarah, if Dr. B sent Sarah home saying the pain was all in her head and it turned out she indeed have a minor flu bug that took a little longer to resolve than it may have had she been prescribed an antibiotic—but overall, no harm was done—then medical malpractice probably hasn’t occurred. For a medical malpractice claim to be successful, there must be harm to the patient and that harm must have been caused by the medical provider’s negligence.

When dealing with medical malpractice, it’s important to remember that there is a difference between negligence and just getting a bad result. It’s not always the health care provider’s fault when something goes wrong. But, when the medical professional hasn’t followed standard of care guidelines, then he or she could be guilty of negligence and medical malpractice.

Medical Malpractice and Technology

You may have been at a doctor’s appointment recently and found your doctor feverishly typing on a laptop while assessing your condition. Every so often, too, you might get a question like “Do you keep guns in your home?” or “Do you practice safe sex?” —don’t be alarmed by these questions. The questions are being asked as the doctor reads them from the patient information program that’s running on his computer—the one that files all your medical information. He’s being prompted to do so, and in some instances, the program will not even allow him to move forward unless he fills in an answer for each question—regardless of how ridiculous the question seems in relation to what you’ve made an appointment for.

With more and more doctors selling their practices to major hospital systems, much of the “office management” tasks—including the housing of your medical files—not only goes electronic, but it becomes managed by the hospital system. And that means a sort of standardized battery of questions that the doctor must ask you about yourself.

You may wonder why such seemingly irrelevant questions are being asked. Well, medical malpractice plays into that. The more information the doctor can get out of you, the more he (and the computer) can assess your risk for certain conditions or identify what’s potentially ailing you, but also the more the doctor is able to “protect” himself (and the hospital system he now works for) from a medical malpractice claim. The computer program serves as a bit of an equalizer for the standard of care—if every doctor is asking you the same questions—or is guided to ask you the same questions—then every doctor is acting to the same standard of care, right? And let’s face it, doctors are busy and a lot of variables can play into making a diagnosis. With technology, it’s sort of like big brother watching and saying, “Oh wait—did you ask the patient about that? Did you consider that?”

All in all, that should be a good thing for the patient (privacy issues aside) as well. But it’s just something to keep in mind as the shift in how your medical information is now sourced and maintained can play into a medical malpractice claim.

So, the next time you’re kicking back and watching “House” and someone snaps, “This is nothing short of medical malpractice! I’ll see you in court!” well, now you have an idea of what it means—or should mean if it were in the real world.

Tags: medical malpractice

This was posted on Thursday, March 24th, 2011 at 6:39 am and is filed under Drugs/Medical, Pleading Ignorance . Feel free to respond, or trackback. Read our comments policy.