Risk Management and Medical Liability
A Manual for Indian Health Service and Tribal Health Care Professionals
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Section Four: The U.S. Legal System: an Overview
This section provides basic knowledge regarding the U.S. legal system, emphasizing common legal terms and several issues relative to malpractice law. The information is meant to serve as an introduction to the remainder of this Manual and to allow the practitioner to have a better understanding of underlying legal principles.1 Important legal terms have been underlined for easy reference.
Precedent: The common law system in the United States is based on case precedent. The principle of adhering to precedent is referred to as stare decisis, Latin for “let the decision stand.” Except in special circumstances, legal principles established in one case are followed in similar cases in the same jurisdiction. Cases do not have to follow precedent if they can be distinguished as significantly different from the precedent-setting case. Case precedents in one jurisdiction are not binding upon courts in other jurisdictions (e.g., in other states) or upon higher courts in the same jurisdiction. However, even if a precedent is not binding, it may be persuasive in that it may influence the development of the law.
Civil versus criminal suits: The same act may constitute grounds for both a civil suit and a criminal prosecution. However, these two legal actions are independent, and the outcome of one has little or no impact on the outcome of the other.
- Civil suits are those involving individuals, groups, or other parties acting in a non-public capacity. Plaintiffs (individuals who initiate the action) in civil suits generally seek to obtain compensation for injuries suffered through the wrongful acts of defendants (individuals who are being sued). A suit may have multiple plaintiffs and defendants. A decision pertaining to one plaintiff or defendant does not necessarily pertain to other plaintiffs or defendants in the same suit. A defendant who loses a civil suit is said to be liable. for damages. The term “guilty” is not technically applicable to a civil suit.
- Criminal suits are those brought by the federal, state, or local government to enforce laws that exist for the protection of society at large. Criminal actions are brought to punish the wrongdoer with a fine, imprisonment, or both. A defendant who loses a criminal suit is said to be guilty. The principal purpose of punishing convicted criminals is deterrence.
Burden of proof: The standard of proof required in criminal prosecutions is higher than the standard required in civil litigation. Plaintiffs in a civil suit must prove their case by a preponderance of evidence – that is, the court must be persuaded that the material elements of the case more likely than not are in favor of the plaintiff. The prosecution in a criminal case must prove its case beyond a reasonable doubt. This is consistent with the presumption by our legal system that the accused is innocent until proven guilty. The party bringing the suit (the plaintiff or the prosecutor) generally bears the burden of proving all material elements in the case. Rarely, special circumstances may shift the burden of proof of certain elements to the defendant.
Jury versus non-jury trials: A right to trial by jury exists for most civil and criminal claims under federal and state constitutions, but a jury trial is not automatic. Unless one of the parties makes a request, the case is docketed (i.e., scheduled) for a non-jury trial. In fact, most cases are tried before a judge alone.2
Functions of judge and jury: The function of the jury is to decide disputed issues of fact, where such issues exist. A summary judgment (i.e., a quick disposition of a case without a trial or resort to jury) will be entered when the judge determines that there are no material factual issues to be decided. The function of the judge is to control the procedural aspects of the trial, to supply the applicable law, and to decide disputed issues of law. If a jury is used, it may announce the verdict, but it is bound to apply the law as instructed by the trial judge.
Statute of limitations: A statute of limitations is a procedural rule that establishes a maximum period of time during which a legal suit may be initiated. After the statutory period is over, a suit cannot be initiated regardless of how b the case may be. A statute of limitations requires parties to bring their suits to court while evidence is still fresh so that factual issues can be determined accurately. It also provides a cutoff date after which parties can be confident that no suit may be brought.
The period allowed for initiating a suit may vary from jurisdiction to jurisdiction for suits concerning similar legal matters. It also may vary within a given jurisdiction for suits concerning different legal matters. For example, the statute of limitations is commonly 4-6 years for contract actions and 1-3 years for personal injury actions. The statute of limitations can be stopped from running in special circumstances – for example, if the defendant is absent from the state or is mentally incompetent and, therefore, unable to be sued.
The beginning of the statutory period for medical malpractice is defined variously as: The date the alleged malpractice took place; the date the physician-patient relationship was terminated; the date the patient discovered the alleged malpractice; and the date the patient discovered, or by exercise of due care, should have discovered, the alleged malpractice (this is the most commonly used definition).3
Measure of damages: Determining the appropriate measure of damages is as important, and sometimes just as difficult, as determining whether the defendant is liable. A number of different measures may be used, either separately or in combination.
- Compensatory damages compensate the plaintiff financially for the harm caused by the defendant. Tangible economic losses, such as expenses for remedial care, loss of wages, and future loss of earnings due to physical impairment, are the principal elements of compensatory damages.
- Pain and suffering, mental anguish, and loss of consortium (i.e., loss of marital companionship, especially of a sexual nature) attempt to provide dollar compensation for losses that are real and discernible but that cannot be measured readily in financial terms.
- Punitive damages—that is, damages in excess of normal compensation—may be awarded against a defendant who acted in a grossly negligent manner or with deliberate wrongful intent. Their purpose is to punish wrongdoers and to deter them and others from acting similarly in the future. The defendant must pay punitive damages to the plaintiff along with any other damages awarded. The amount is generally computed with regard for the degree of culpability of the defendant’s actions and the defendant’s ability to pay.
- Nominal damages are awarded when the plaintiff has been able to establish the defendant’s wrongdoing and, thus, the defendant’s liability but has not been able to prove that the plaintiff suffered any monetary loss. A small sum, such as one dollar, is awarded as a symbolic acknowledgment that the plaintiff won the suit.
- Legal expenses. Under the American legal system, each party bears its own legal expenses, regardless of who won the litigation. However, court costs are assessed against one or the other or both parties at the discretion of the court.
Definition: Torts are civil wrongs – that is, injuries to an individual’s person, property, or reputation. Torts can be negligent or deliberate. Remedies in tort suits generally are meant to compensate the aggrieved party to restore as nearly as possible the position the victim would have enjoyed had the tort not been committed. When an individual’s conduct is particularly culpable, punitive damages may be awarded.4 Tort law as applied against professionals is called malpractice.
Negligent torts: Most of the litigation relating to failures of medical care involves alleged negligence by health care providers. An individual who has been the victim of a tort conduct can sue for damages. However, unless the following four conditions are satisfied, there can be no recovery for the negligent tort.
- Duty: A duty is an obligation recognized by the law, the breaching of which is subject to legal sanctions. To recover damages, the plaintiff must establish that he/she was owed a duty and the nature and extent of that duty. The duty, or standard of care, generally must be established by expert testimony as to common practice within the relevant profession.
- Breach of Duty: The plaintiff must prove that the defendant performed significantly below the legally required standard of care.
- Damage: The plaintiff must prove that he was harmed and establish the nature and extent of that harm. In medical malpractice litigation, damages may be based on physical injury, psychological harm, and loss of reputation. Simple economic losses suffered by the plaintiff are generally not recoverable unless they are coupled with some other harm suffered.
- Direct causation: There can be no liability unless the defendant’s negligence was the proximate cause of the plaintiff’s injuries. A proximate cause is a factor without which the harm would not have occurred; it must be the predominant factor causing the harm. In medical malpractice cases, proximate cause is often difficult to establish since bad outcomes can occur even in the absence of negligence. Under the “loss of a chance” theory, some courts have begun to award damages if the plaintiff can establish that the defendant’s acts significantly reduced the patient’s chances of survival or recovery. This liberal definition of causation makes it easier to recover damages in cases of medical malpractice.
Standard of care: Identifying the standard of care is the cornerstone of proving whether or not medical negligence took place. Various rules and precedents apply. It should be noted that practically all standards of care are now based on a national model. This national standard is most stringently applied to specialists, but it would behoove all practitioners to provide care on a par with national benchmarks appropriate for their discipline.
- Reasonable care: The care usually required is that degree of care that a reasonably prudent individual would exercise in similar circumstances. The standard of care generally is fixed by reference to the customary practice of a given profession. Because the judge and jury cannot possibly know the customary practice of all professions, this must be established in court by expert testimony. Participation as an expert witness, which must be voluntary, is secured through negotiation of a witness fee. In contrast, testimony as to one’s factual observations can be compelled through use of a subpoena (a court order to appear and testify). It is widely claimed, especially by plaintiffs’ attorneys, that a conspiracy of silence among physicians makes it difficult to obtain expert testimony on behalf of plaintiffs in medical malpractice cases.
- Locality rule: The locality rule has largely been replaced by a new approach – national standards for health care practice, especially in cases where specialty care is rendered by board-certified practitioners. The “strict locality” rule requires that expert testimony on the standard of care be drawn from the geographic community in which the alleged malpractice occurred. In the late 1800s, courts recognized that customary medical and surgical practices in isolated areas were not on par with those in progressive urban areas, and a differential standard of care was allowed. The “same or similar community” standard measures the defendant’s performance by reference to closely comparable medical communities. This liberalization of the locality rule makes it easier for plaintiffs to obtain expert testimony in support of their cases.
- Generalist versus specialist standards: When a physician claims the ability to provide the type of care that normally is rendered by a specialist, the standard of care applied is that of the appropriately trained specialist. Under emergency circumstances in which specialty care is not available, a general practitioner may provide care that normally is rendered by a specialist. In such cases, a generalist standard should be applied to measure the adequacy of the care rendered. Failure to refer a patient to a specialist when specialty care is indicated subjects the attending physician to liability (called negligent non-referral).
- Proof of dereliction: Whether or not the defendant performed up to the required standard of care is a factual matter, generally requiring proof. Although expert witnesses cannot be compelled to testify as to matters of opinion, they can be required (subpoenaed) to testify as to factual matters that they directly observed in the care of the patient (plaintiff). However, sometimes the care may have been so deficient that a judge or lay jury may infer negligence even in the absence of expert testimony under the doctrine of res ipsa loquitur, Latin for “the thing speaks for itself.” Thus, the plaintiff is spared the burden of producing further evidence of negligence. An example would be a surgical instrument discovered to have been left inside a patient during a previous operation.
Deliberate torts: Although most medical suits involve negligent torts, there is significant opportunity for suits charging deliberate (intentional) torts. To establish the required intent to support such a charge, it is not necessary to show that the defendant specifically meant to harm the plaintiff but only that the defendant deliberately performed the wrongful act. The following are the most significant types of deliberate torts in the medical arena.
- Battery, which is defined as touching an individual without permission, often leads to health care suits. The wrongful act to be avoided under battery is the invasion of a person’s right of bodily inviolability. A valid ground for complaint exists even if the defendant intended no harm and the patient suffered no physical damage. Monetary awards generally are small unless there is physical damage or the defendant meant to cause harm. Cases of alleged sexual assault by physicians are considered battery actions.
- Fraud and deceit are important grounds for deliberate tort suits. Cases in which a physician deliberately misrepresents facts to obtain a patient’s consent for a procedure are treated as matters of fraud and deceit. These cases can be distinguished from the more common cases of informed consent.
- Breach of confidentiality involves a disclosure of information about a patient’s case without his permission. This theory can support a suit based on an implied duty to keep patient information confidential, invasion of privacy, defamation, and unprofessional conduct.
Institutional liability: Increasingly, courts are holding health care institutions liable for malpractice committed by individuals in some relationship with the institution.
- Vicarious liability occurs when one party is held responsible for something that another does or fails to do. This is known as the doctrine of respondeat superior. This comes from old English law and translates as “let the master answer.” If a plaintiff wishes to recover from the employer under this doctrine, he need not prove that the employer was negligent. Instead he must only prove the employee was negligent and was acting within the scope of his employment. Scope of employment is a vague concept but has been defined as including any actions undertaken by the employee in furtherance of the employer’s business or any activities incidental to performing his daily work. This doctrine generally applies only to employers; a supervisor is not responsible for an employee’s actions unless the supervisor ordered the employee to take such actions.5
- Corporate negligence is an evolving legal theory by which an institution may be held directly (not “vicariously”) liable for a tort committed by an independent contractor, such as a staff physician, practicing in or through the institution. The institution has a duty to all patients treated in its facilities to take reasonable steps to assure the competence of all who are allowed to practice there. Liability can result from failing to check credentials adequately before granting staff privileges to an unqualified practitioner or from allowing privileges to be retained when the institution knows, or should know, that the practitioner poses a risk to patients.
- Governmental immunity still prevails in several jurisdictions, preventing or limiting suits against institutions run by governmental units. In states where the doctrine exists, the facts and circumstances of the individual case may determine whether the doctrine applies. Immunity for the institution may not extend to all health professionals practicing there.
- Peer review and professional discipline have been strengthened in response to increased institutional liability pressures. Reporting incidents of malpractice and adverse actions taken on a provider’s credentials to the National Practitioner Data Bank is now required. Healthcare institutions must consult this registry when granting staff privileges and periodically thereafter. Civil immunity is granted to health care entities that engage in peer review if prescribed due process safeguards for the practitioner are observed. States also are improving medical licensure and discipline mechanisms, providing various services and supports for “impaired physicians” (i.e., generally those suffering from substance abuse and other personality disorders), and demanding mandatory reporting by professionals of those known to pose a threat to patient safety.
1 Adapted from Rosoff, AJ: Legal Aspects of Medical Practice and Community Medicine, in Preventive Medicine and Public Health. 2nd edition, Harwal Publishing, Philadelphia, 1992
2 Medical malpractice suits filed against the IHS or Tribal programs are argued before a federal judge in the appropriate US District Court. No jury is involved.
3 The statute of limitations for initiating a federal malpractice claim is two years (See Section X).
4 Punitive damage awards are not allowed for federal medical malpractice tort claims.
5 See Manual Section X on Federal Tort Claim Act
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