Wednesday, September 14, 2005

The Four Elements of Medical Malpractice

Medical malpractice has the following four essential elements. All four of these elements must be proven for malpractice to be established.

[1] Duty of care resulting from a relationship between the patient and the caregiver. Associated with this is a minimal "standard of care" (duty of care).

The question here is "Did the caregiver agree to treat the patient?" If the answer is YES, then an appropriate degree of skill and competence is required (the minimal standard of care). In addition, there may be instances where the caregiver has a duty to persons other than the patient. For example, should a patient suffer an epileptic seizure that leads to an accident to others (as in a car accident), the caregiver may be liable for their injuries as a result of failing to diagnose the patient's epilepsy or for not warning the patient against driving when the diagnosis of epilepsy was established.

[2] Breach of that standard of care by caregiver (breech of duty)

This is usually established by expert court testimony that defines what the acceptable standard of care is and that explains how the caregiver did not provide that care. Of course, expert witnesses for the other side will argue the exact opposite.

[3] Injury to the patient

This is often easy to establish, as in when the patient has had the wrong kidney removed, but it can be more difficult to establish, for instance, when the injury is psychological.

[4] Proof of the injury was caused by the breach of care (proximate cause)

Proximate cause can be determined by asking if the patient would have been harmed in the absence of the caregiver's actions. For example, would a patient undergoing an appendectomy have been harmed if the surgeon had not left a sponge in the patient's addomen? If the answer is NO, then the surgeon's actions are deemed to have caused harm to the patient, and thus fit the causation requirements.

A person accused of malpractice can mount a defence by showing that one of the above four elements is missing. For instance, he or she may argue that the injury to the patient was preexisting and not caused by the caregiver.

Common theories (types of claims) of malpractice include: 1) lack of appropriate care; 2) lack of informed consent; 3) negligent supervision; 4) patient abandonment etc.