Malpractice
DEFINITION
Malpractice is a preventable error in care of the patient resulting in harm to the patient.
Malpractice is also dependent on determining if the patient’s care deviated from the standard
of care in a local community. In other words, if the physician did or did not do something
that was different from what is locally accepted practice that resulted in harm to the patient
then malpractice occurred. The intent or level of goodwill of the practitioner is not relevant if
harm occurred. If a very sweet and sincere person gave fosphenytoin for congestive failure
instead of furosemide because of his terrible handwriting then malpractice has occurred if the
patient’s condition worsened and he was harmed. If the best surgeon in the world amputates
the wrong foot, then malpractice has occurred. How nice someone is has an enormous
correlation with how angry patients may be, and how likely they are to file suit, but it doesn’t
establish liability.
For example, a surgeon is consulted to place a central line. He is very rude and
arrogant and speaks harshly to the patient. The patient signs consent after being
informed of the complications and alternatives in management. A pneumothorax occurs
and the patient is infuriated that this “high-handed bastard” hurt him. He files suit
against the surgeon for malpractice. What will be the most likely outcome of the suit?
In the same way that being pleasant does not absolve you of liability, being harsh and
unpleasant do not equal malpractice. A pneumothorax is an occasional complication of
central line placement. The patient was fully informed of this and still agreed to the
procedure. There has not automatically been wrongdoing in this case.
Evidence of harm is an important part of establishing malpractice. There must be both an
error m the care, as well as evidence that there has been an adverse effect on the patient.
For example, a patient with diabetes has osteomyelitis on an X-ray of his foot. The
physician does not perform a bone biopsy and gives the patient oral cefadroxyl for six
weeks. After therapy is over, the osteomyelitis has completely resolved. The patient
sees some literature on the Internet several months later conclusively showing that a
bone biopsy is an indispensable part of osteomyelitis care to determine an organism and
its sensitivities. In addition, he sees that intravenous therapy is the standard of care. He
files suit against the physician. What will be the most likely outcome?
The patient is right that the physician deviated from the standard of care on these two,
points. However, his disease was effectively treated and there was no harm done to the
patient, and in fact there was benefit. Therefore, malpractice has not occurred.
DEVIATIONS FROM LOCAL STANDARDS OF CARE
Physicians must practice according to accepted therapy based on demonstrated efficacy.
41
Because there is a certain amount of subjectivity in care, it is incumbent upon the physician
to determine what the locally accepted standard of care is. In addition, you must fully inform
the patient of all options in care in order to make a truly informed choice.
For example, a surgeon has just moved into private practice in Beverly Hills
California, after his research fellowship. His patient with lymphoma signs consent for
an exploratory laparotomy to stage lymphoma. He does not inform the patient that CT
scanning is a valid option. The surgeon tells her, “I don’t trust those scans. We always
did laparotomies in my fellowship.” The patient develops an abdominal wound
infection leaving her with a scar that ends her career as a swimsuit model. In the suit
that follows the surgeon states, “I did the most accurate procedure for my patient to
exclude cancer in the abdomen. That is what all my professors did in their studies.”
What will most likely be the outcome?
The surgeon erred in two ways. First, he did not explain to the patient that a CT scan of
the abdomen is a valid option to exclude stage III lymphoma. Because he did not fully inform
her, he will probably lose the case. Second, the local standard of care outside of certain
research protocols is to do only the scans. Because the patient developed a complication from
an avoidable procedure and there has been harm, the physician is at fault and will probably
lose the case. The same reasoning would be true for a surgeon insisting on an axillary lymph
node dissection for every patient with breast cancer instead of a sentinel lymph node
dissection. If the patient develops edema and cellulitis from an unnecessary procedure, then
there has been harm. The sentinel node dissection is most often the local standard of care. In
addition, if the patient was not informed of the option of an axillary dissection, then there has
not been full informed consent. The patient cannot choose a procedure if she has never heard
of it.
INFORMED CONSENT PROTECTION AGAINST LIABILITY
Errors and complications do not automatically imply malpractice. In terms of errors, part
of the liability depends on whether or not the error resulted in harm to the patient.
For example, a patient admits to the hospital for a knee replacement. The staff
forgets to start the patient on deep venous thrombosis (DVT) prophylaxis. The patient
does not develop a DVT. On transferring care several months later the patient obtains a
copy of the chart and sees the omission. He files suit for a deviation of care. What is the
most likely outcome?
Although it is a clear error to omit DVT prophylaxis in this case, no harm has occurred to
the patient and it would be difficult to obtain monetary reimbursement for damages if the
patient is unharmed.
Complications of therapy do not imply malpractice. The main issue in determining
malpractice is whether the patient was fully informed that the harm could occur and whether
or not he was informed of other valid options in therapy. If he was fully informed and he
signed consent anyway, then malpractice has not necessarily occurred.
42
For example, an actress develops stage IV non-Hodgkin’s lymphoma. You inform
her that neither surgery nor local radiation will be appropriate. She agrees to undergo
combination chemotherapy and has been informed of all the potential adverse effects
including hair loss, sterility, and peripheral neuropathy. The usual and customary dose
of the chemotherapy is given and the patient loses her hair and develops neuropathy
from the vincristine. She is not able to work because of her appearance. She files suit
because of this. What will be the most likely outcome?
Although in this case harm has occurred to the patient, the physician is not held liable for
malpractice. He has fully informed the patient that her best option for survival was
chemotherapy and that hair loss and neuropathy could occur. Although it is unfortunate that
this has occurred, that does not make it malpractice.
INFORMED REFUSAL IS AS IMPORTANT AS INFORMED CONSENT
If a patient refuses therapy it is not sufficient to say that the patient was a competent adult
who had the ability to refuse therapy. The patient must be fully informed of the effects and
possible outcomes of refusing therapy including all the harm that could occur. If the patient
still refuses then there has been no malpractice. It is also not acceptable to say that a patient
was difficult, abusive, or unable to understand English. The physician has an obligation to
provide information to adult patients with decision-making capacity in a language that they
can understand.
For example, a 60-year-old man conies to the emergency department with one hour
of chest pain and an ST segment elevation myocardial infarction. The patient is a recent
immigrant who speaks French and understands little English. You inform the patient
that the best therapy is angioplasty and possibly thrombolytics. You explain that they
can develop intracranial bleeding from the thrombolytics and a hematoma at the site of
the catheter placement from the angioplasty. The patient, anxious to avoid these
complications, refuses both. You do not double check the refusal with a translator. The
patient dies and his family sues you for malpractice. In your defense you point out the
clear fact that you offered the patient lifesaving therapy and he refused. What will be
the most likely outcome?
In addition to informing a patient of the complications of therapy, you must also inform
them of the complications of not receiving the therapy. In addition, if there is the question of
a language problem, you must obtain a translator to double check your patient understands
the impact of withholding the treatment. In this case it was not documented that you told the
patient that he could die without the treatment. He was not fully informed. You would lose
the lawsuit.
PATIENTS MUST FULLY INFORM THE PHYSICIAN OF THEIR MEDICAL
PROBLEMS
For example, a man is admitted for a. possible DVT. He denies any past medical
history. He does not inform you of his recent diagnosis of a gastric ulcer after
endoscopy for severe upper gastrointestinal bleeding. There is no previous record at this
hospital. You give him heparin and he hemorrhages massively. He sues you for
43
harming him. His lawyer knows you gave heparin to a patient with a. history of
bleeding that harmed the patient. What will be the most likely outcome?
In addition to a patient’s right to be fully informed of the risks and benefits of therapy, the
patient also has a responsibility to inform you of their entire medical history. There is no
malpractice if the patient has a complication from a previous illness that he did not tell you
about and you had no way of knowing of. If the patient has a history of an allergy to
penicillin and he does not tell you when you ask, you are not held liable if you administer
penicillin and he develops an allergic reaction.
RISK MANAGEMENT
Risk management is the term applied to the administrative portion of the hospital devoted
to assessing liability issues in terms of care. Risk management assesses deviations in care and
analyzes cases in which wrongdoing might have occurred in order to minimize the risk of
litigation for the hospital.
MEDICAL ERRORS
The physician has a duty to inform patients of errors in care if those errors will have an
impact on the patient’s care. The patient has a right to know what is happening in his
management. This includes all errors that may affect the outcome of the patient’s care.
Informing the patient is not limited just to telling him about the errors that you know he will
find out about or to inform him just about the ones that may result in litigation and
malpractice. If I bring my car to you for repair and your assistant breaks the windshield by
mistake, I have a right to be informed. The car is my property and I have a right to know
what is happening with it.
On the other hand there is no mandate to inform a patient about minor errors that will
have no impact on her care or treatment. If the blood tests were delayed or a single test
forgotten the patient does not have to be informed of this as long as the information is
obtained in a timely fashion and as long as it will not impact her care. The main determinant
of the need to inform the patient is not the magnitude of the mistake, but rather the impact on
her life and health care.