Continuing on in my series of posts about Medicine and the Law, we’ve established that there are two elements necessary for a patient-physician relationship to be established — contract and consent. There must be a written or implied contract in place, and there must be agreement to it on both sides (either written, verbal, or implied through actions). Now we get to the juicy part of the equation — Medical Malpractice.

Medical malpractice is a form of tort law. What this means is that a tort is a civil wrong or grievance for which a remedy must be obtained. Basically the remedy is in the form of damages. Thus in tort law someone is upset and wants repayment for an action.

The key question at hand is when does a patient have a legal grievance against a physician? Essentially, a patient must show that a physician had a duty to him/her and that it was violated, and that the violation harmed the patient. Typically, it is easy to show that a physician had duty to a patient. Similarly, it is easy to show that a patient is harmed when it is a physical outcome that they are concerned about. It is usually difficult to show that the physician violated his duty to the patient and that the violation caused harm.

It gets complicated because in medicine there is a standard of care that varies according to region, specialty, and circumstance. There are some absolute standards that cannot be violated. These would typically fall under the emergent care scenario where a person must be resuscitated and hemodynamically stable before further care can be given. But what about the grey area?

Should a homeless person who needs elective surgery be operated on when the chances of post-operative infection are unreasonable?

Should every elderly patient who has symptoms of pneumonia be admitted to the hospital?

The problem with medical tort cases is that the standard of care varies according to which expert you speak with. A practitioner in Boston may not agree with a practitioner in San Francisco.

Thus if you are a physician, it is very important to get to know other practitioners in your area and to stay up to date with the community standard of care. If you are a patient it is wise before bringing a tort action to get several opinions.

One important thing is to know that most physicians do not like to testify in court against other physicians. You will be able to find someone who will testify, but in general we all take the Oath of Hippocrates and do whatever we can for the patient. Mistakes can be made, differences in treatment can be made. It is not with intention that bad outcomes happen.