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Chapter 36. Medical Malpractice

Adam C. Schaffer, MD; Nicholas Beshara, JD, MPH

Medical malpractice is a serious concern for many physicians and a topic that often prompts intense debate. In this chapter, we review the elements of medical malpractice, as well as data about the frequency of both negligent medical care and actual claims of medical malpractice. Data that exist about how well the malpractice system does in achieving its purpose of deterring negligent medical care and compensating patients who are harmed by such negligence are reviewed. We also discuss malpractice issues that are of particular concern to hospitalists, and, most crucially, what can be done to try to reduce the risk of being the subject of a medical malpractice claim.

The authors would like to thank Prof. Michelle M. Mello for her review of the manuscript and her thoughtful comments. We would also like to thank the National Practitioner Data Bank for assistance with data acquisition.

Medical malpractice is a form of negligence that applies to health care providers including doctors, nurses, and institutional medical care providers like hospitals. At the core of negligence-based liability is the notion that individuals committing unintentional but reasonably avoidable acts that cause injury should be required to compensate the victims of those acts. To determine whether negligence is present in a given situation, courts require plaintiffs to prove four elements through a preponderance of the evidence: duty, breach, causation, and harm.

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Practice Point

To determine whether negligence is present in a given situation, courts require plaintiffs to prove four elements through a preponderance of the evidence: duty, breach, causation, and harm.

  • In the hospital setting, physicians have a duty to provide care with the same skill and diligence as a reasonably competent physician in the same specialty or field of practice would under similar circumstances.
  • The question of whether a physician breached the duty of care, then, often hinges on competing testimony provided by expert witnesses as to the applicable standard of care and whether the conduct in question failed to meet that standard.
  • To establish legal causation, the plaintiff must show that the breach was both the “cause in fact” and the “proximate cause” of the injury.

The duty of care in negligence claims is a hypothetical standard by which the court judges the conduct of the defendant to determine whether he or she had an obligation to act differently. In the hospital setting, physicians have a duty to provide care with the same skill and diligence as a reasonably competent physician in the same specialty or field of practice would under similar circumstances. Failure to meet this standard constitutes a breach of the physician's duty of care. In most cases, for this duty to exist, a physician-patient relationship must have been established.

In order to determine whether a physician has breached the duty of care, an expert witness must testify as to the applicable standard in court. ...

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