The law of medical malpractice falls under the general rubric of tort law, in particular, negligence. Torts are civil wrongs. Civil wrongs are generally redressed by monetary compensation.
Endoscopic malpractice is not distinguished from medical malpractice proper. As such, the general rules of tort law which apply to medical malpractice apply to endoscopic malpractice
This section is designed to introduce you to the general notions of tort law as applies to endoscopic practice. Additionally, several risk management techniques are offered to reduce your medical malpractice exposure.
The basic elements of tort law are simple. They include the following:
- A duty;
- A breach of duty;
- Causation (or the breach of duty is the cause of the damages); and,
It is important for you to comprehend the four elements of a medical malpractice case. Each element will be presented accordingly.
Your duty to the plaintiff arises from the physician-patient relationship. If there is no duty, there is no malpractice risk.
The physician the patient relationship is usually entered into implicitly and consensually. Some examples of the creation of the relationship are an office visit, a hospital consultation, or the performance of an endoscopic procedure.
The physician-patient relationship may be created without actually meeting the patient. For example, giving a patient an office appointment may create a relationship. Other examples include the scheduling of an endoscopic procedure or the prescription of the cleansing preparation for colonoscopy.
You must always be mindful of your duty to a patient. You must know when it begins and ends. You must define its limits. The reasonable practice of medicine or the standard of care delineates the duty itself, that is, your obligation to the patient.
In modern medical practice, you must be clear as to your role in the management of a patient. For example, the family of an elderly decedent brings a malpractice against you for the wrongful death of their father who died from electrolyte imbalance and digitalis toxicity. Ten days prior to his death you placed PEG tube in him and visited him a few times afterwards noting that the PEG site was clean and dry. You recommended the initial PEG feedings on postprocedure days 2 and 3, but not thereafter (the attending physician did). Among the defenses available to you is the argument that you had no duty to the decedent in regards to the cause of action (negligence in monitoring the electrolyte and digitalis level). If your medical records support your defense, the case the case against you should fail since you had no duty to the decedent in regards the asserted cause of action.
A few closing comments on duty. The physician-patient relationship or your duty to the patient continues once established unless something triggers its termination. The patient may terminate the relationship at any time. Likewise, the physician may terminate the relationship at any time, but he must give the patient adequate time to find alternative medical care (at least 2 weeks) and notice (preferably written) of his desire to do so. If you terminate the physician-patient relationship improperly and the patient suffers harm, you may be liable for abandonment.
Lastly vicarious liability for the wrongs of others must be considered. House staff or nurses under your direction may perform negligent acts for which you may be deemed liable based on your duty to the patient. The issue of vicarious liability is covered in more detail in a later section.
Breach of duty
Your duty, once created by the physician-patient relationship, is to practice within a reasonable standard of care. The standard of care is that practiced by a reasonable physician practicing with reasonable skill and diligence. It is what medical school, postgraduate medical training, practice experience and continuing medical education teach us. The standard of care might be simply stated as good medical practice. It is a legal construct that attempts to define typical medical care.
It is incumbent upon you to keep your medical knowledge current and updated. This will reduce your malpractice risk. Guidelines of practice such as those promulgated by the American Society for Gastrointestinal Endoscopy should be familiar to all endoscopists. Endoscopists should practice within these and other appropriate guidelines in order to maintain a practice level at a reasonable standard of care. Deviations should be explained thoroughly and accurately in the medical record. Be aware that guidelines are equally likely to be a tool for the plaintiff as for the defense.
In order for plaintiff to prove that you breached your duty of care owed him, expert testimony is almost always necessary. The expert physician will come before the trier of fact and establish what he believes to be the standard of care and he will explain how he ascertained your practice deviated from that standard. In kind, a defense expert will appear and similarly explain what he believes the standard of care is and how your practice compared with that standard. It is ultimately up to the trier of fact to decide whether you breached your duty to plaintiff.
This element is oftentimes the hardest one for the plaintiff to prove. In order to achieve economic success in a lawsuit, the plaintiff must prove to the trier of fact that the damages claimed were the proximate result of your breach of duty. Alternative analyses of causation include the “but for” test (but for your breach of duty the damages would not have occurred) and the substantial factor test (your breach of duty was a substantial factor in the eventuation of the damages).
An example is helpful. You evaluate a patient with the gastric ulcer. Overall the ulcer appears endoscopically benign. You take 4 biopsies, which are negative for malignancy. You prescribe H2-blocker treatment and advise the patient to return in 8 weeks for a repeat EGD. He returns in 20 weeks. A second EGD reveals a partially healed ulcer but heaping up of the surrounding mucosa. You take 4 more biopsies, all again negative for malignancy. You order a CT scan of the stomach. The patient cancels the first appointment. He finally has the CT scan 6 weeks later. It reveals gastric wall thickening and a mass. Surgery reveals at adenocarcinoma. The surviving spouse ultimately sues you for failure to make a timely diagnosis leading to the decedent’s pain, suffering and death.
For arguments sake let’s agree that you breached your duty and a standard of care in failing to take at least 6 biopsies during each EGD. Nonetheless this case would likely fail because the plaintiff will have a most difficult time with causation. Since the natural history of gastric cancer reveals that the tumor is incurable by the time it ulcerates or forms a mass on CT scan, the plaintiff will be hard pressed to establish that the pain, suffering and death (damages) were the proximate result of your failure to diagnose the tumor at any time during which you had treated the decedent.
Discussed more below is your defense of the decedent’s contributory negligence. Since he failed to follow your recommendations for follow-up EGD and for an earlier CT scan, you would argue that his own negligence delayed the diagnosis beyond a reasonable period. (Of course your defense counsel hopes you documented your recommendations in writing at the time you made them to the decedent!)
Damages are the losses suffered by the litigant. In medical malpractice cases they are generally of 3 types. General damages include those for pain and suffering. Special damages include past, present and future medical expenses, loss of income, wages and profits and funeral expenses. Punitive damages are awarded for gross negligence. These are generally not part of medical malpractice awards.
Gross negligence, in distinction to ordinary negligence or medical malpractice, has some elements of wanton, willful or reckless disregard for the plaintiff alleged. There is some degree of intentionality, fraud or conscious indifference on the part of the physician. Punitive damage awards are meant to punish. They’re not covered by medical malpractice insurance policies.
There are some defenses available to you in medical malpractice actions. The statute of limitation varies in differing states, but generally is in the order of 2 or 3 years. That is, a litigant must bring in action against you within the period of the statute of limitations (from the time the incident occurred or when he had knowledge of it) or he is forever barred from doing so.
Contributory negligence of the plaintiff or decedent was classically a complete bar to tort recovery. Since there is frequently some degree of contributory negligence by such parties in medical malpractice actions, courts and legislatures have fashioned the less harsh rule of comparative negligence. Under a pure form of comparative negligence the plaintiff is awarded that percentage of the damages for which the physician is liable. Other variations of comparative negligence only allow the plaintiff recovery if the physician is 50 % or more responsible for the damages.
Risk management techniques
There are several simple and straightforward risk techniques that you should consider incorporating into your practice routine. They are the following:
- Become familiar with the basics of tort law.
- Maintain a positive attitude your patient relationships.
- Be honest and open in your interactions with the patient.
- Clearly define your role and responsibilities.
- Personally obtain informed consent from the patient and document the process in writing.
- Discuss fully complications that may or do occur.
- Document in writing all aspects of your patient care.
- Insure that your office staff is well trained and interacts well with your patients.
- Be knowledgeable about your medical liability insurance coverage.
Medical malpractice and the law in general have greatly altered the way you practice medicine. Present-day endoscopists should be educated in the basics of law as it applies to their practices. Since many endoscopists may be sued for malpractice at some time, the fundamentals of tort law should be assimilated and understood.
It is helpful to develop some business acumen and perspective in dealing with your practice as the practice of endoscopic medicine in this era is a business. Among these considerations is the risk of being sued for medical malpractice. This risk is real and unavoidable. Accepting this, begin to minimize this risk through education, both legal and medical. Take those steps necessary to keep your malpractice risk low. For example, an endoscopist who performs endoscopic retrograde cholangiopancreatography without adequate training and experience is taking an unnecessary medical malpractice risk.
Physicians named in litigation often suffer severe emotional and physical reactions. Depression, loss of confidence, hypertension, myocardial infarction, and other maladies have been reported as a result of being in a medical malpractice suit. Is important to recognize that in today’s litigious climate, being sued is part of the risks associated with the practice of medicine. An improved attitude is needed to handle this type of stress better.
A universal theme among plaintiffs who initiate lawsuits is anger with the physician. Oftentimes the plaintiff feels betrayed. On the other hand, there is less likelihood of a malpractice suit when a satisfactory patient physician-patient relationship exists. Avoid lies, half-truths and deceptions in your practice. You must strive to improve your relationships with your patients (and their families, since it is often the family which files a lawsuit). For example, in explaining the need for follow-up surveillance colonoscopies to a patient with long-standing ulcerative colitis, take the time and effort to explain the natural history of the disease and the risks of carcinoma. Allow a period for questions and answers. Interact with family members if appropriate. In short, relate to the patient as his ally.
Since your legal liability is defined by your duty to the patient, begin to think in terms of defining and limiting your duty. Be mindful of your role in a patient’s overall management. For example, you should identify who is to write antibiotic and IV orders in a hospitalized patient that you are asked to consult on for liver abscess. State in your letters to referring physicians who will be responsible for follow-up of enteral feedings following PEG placement. Once you begin to define your role with particularity, you will significantly limit your legal liability to those matters for which you are responsible.
The legal doctrine of informed consent is an excellent risk management tool and is fully discussed in a separate section. In brief, by participating in informed consent with your patient you not only strengthen the physician-patient relationship, you help protect yourself from the complications which will arise in you’re endoscopic practice.
Endoscopic complications happen to all endoscopists and it is important to handle them well. The occurrence of a complication is not malpractice per se. The failure to make a timely diagnosis of the complication, however, could be. In the event of a complication, for example, a perforated esophagus after dilatation, early diagnosis and treatment are important. Equally important is your responsibility to the patient and the family. A full explanation of what happened and your plan of treatment is necessary. Be compassionate as well as clinically competent. Do not lie and hide the truth of the matter. On the other hand, do not impugn or denigrate yourself. Avoid statement such as, “It’s all my fault.” Complications are a risk of doing a procedure and informed consent allows the patient to accept and share in this risk. Remember to inform your insurance carrier following any complication or potentially litigious situation.
Documentation is your shield against malpractice claims. As a risk management tool, it is of inestimable value. As with informed consent, a section is devoted to documentation. In brief, document, document and document!
Some attention must be paid to your office staff. Manners and courtesy on their part will reflect on your physician-patient relationships. Also, negligence on their part may be imputed to you either as their employer (respondeat superior) or through other theories of vicarious liability. For example, a patient referred you for colonoscopy has a 95 % stricture of the sigmoid colon by barium enema. The differential includes a stricture secondary to carcinoma, long-standing diverticular disease with narrowing and Crohn’s disease. After calling to arrange the procedure, your office nurse follows your usual protocol of instruction. She instructs him to drink a 4 liter balanced electrolyte preparation the evening before the procedure. By the following morning the patient has passed none of the preparation. An acute obstruction is precipitated. Since this form of preparation is contraindicated in obstruction of the colon, you may be liable for malpractice in prescribing it. Even though you had no personal knowledge of the patient before the morning of the obstruction, you may be deemed liable for the actions of your employee.
Insurance for malpractice, while not a risk management tool, is necessary for the practice of medicine today. Malpractice insurance is basically an agreement between you and your carrier to indemnify you against monetary judgment or settlement in the event that you are sued in the course of your practice. There are two types, claims-made and occurrences. The claims-made type covers you for any suit brought against you during the period of time the policy is in effect. With this type of policy a tail is necessary at the point you decide to leave the practice since claims may be brought against you at a later date when the policy is no longer effective. An occurrence type of policy covers you for any suit, which originates (that is the time at which the cause of action or injury occurred), during the time the policy was in effect. No tail is needed with this type of policy.
Malpractice policies usually have several conditions, including the requirement to notify the insurer of any claims made against you. You are required to assist the insurer in its defense of you. Terms of cancellation are set out. Policy limits are listed. There may be a clause allowing you the right to authorize or reject settlements. As a good businessperson, it is your responsibility to be familiar with your malpractice policy and to be certain it serves your needs.
In this section the basics of tort law are set out. The key elements are a duty, breach of duty, causation and damages. Several risk management techniques are described that may be applied to endoscopic practice.
The preceding information is intended only to provide general information and not as a definitive basis for diagnosis or treatment in any particular case. It is very important that you consult your doctor about your specific condition.