S.Y. TAN

Question: A patient developed postoperative paralytic ileus with intractable vomiting. The attending doctor inserted a nasogastric tube and administered intravenous fluids in the form of 5% dextrose in water. The patient died 6 days later from hypovolemic shock and cardiac arrhythmias. Serum electrolytes were not measured until the last day, when severe hyponatremia and hypokalemia became evident. A lawsuit for wrongful death alleged gross negligence and sought punitive damages, but no expert witness was called to testify. Which of the following best describes the situation?

A. This is a clear case of gross negligence, a standard of care so low as to shock the conscience.

B. The plaintiff will win; expert testimony is unnecessary because a reasonable layperson would conclude that there was substandard care.

C. Punitive damages are commonly awarded in medical malpractice cases, especially when negligence has caused death or severe neurologic injury.

D. Gross negligence is something more than ordinary negligence, but less than reckless or wanton misconduct.

E. Good Samaritan laws encourage aid to strangers by providing immunity for a defendant who would otherwise be liable for ordinary or gross negligence.

Answer: D. This hypothetical scenario introduces the notion of gross negligence as being different from ordinary negligence, and the legal implications of that distinction. The vast majority of medical malpractice cases allege ordinary rather than gross negligence. While it is agreed that gross negligence denotes something more “substandard” than ordinary negligence, there is no precise legal definition. In some jurisdictions, such as Connecticut, gross negligence may constitute an exception to the need for expert testimony, which is otherwise a requirement to establish medical negligence. In the above scenario, the jury may be allowed to determine liability without expert testimony only if the doctor's misconduct was so obvious as to constitute gross negligence—by no means a foregone conclusion.

Compensatory damages are the norm for medical plaintiffs who prevail. Punitive damages may occasionally be awarded when gross negligence is proved, but courts in several states have discouraged such awards, absent a malicious intent, so choice C is incorrect. Choice E is also incorrect. To encourage aid to strangers, “Good Samaritan” statutes immunize aid-givers from liability should ordinary negligence result in harm, but such immunity is typically forfeited if there is a finding of gross negligence.

In the medical context, the operational definition of negligence is best referenced in Prosser's Textbook on Torts: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing.” Gross negligence denotes a higher degree of culpability than ordinary negligence, signifying “more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequences.” The California Supreme Court approved the definition of gross negligence as “the want of even scant care or an extreme departure from the ordinary standard of conduct” (Van Meter v. Bent Construction Co., 297 P.2d 644, 1956). Likewise, the law in Texas stipulates: “Gross negligence means more than momentary thoughtlessness, inadvertence or error of judgment. It means an entire want of care as to establish that the act or omission was the result of actual, conscious indifference to the rights, safety and welfare of the person affected” (Texas Civil Practice & Remedies Code § 41.001[7]).

Gross negligence does not have to amount to willful, wanton, or malicious misconduct. It does not even have to reach the level of “reckless disregard.” Thus, in the Restatement (First) of Torts, an authoritative source of law, the authors differentiate reckless disregard from gross negligence by stating that the former creates a degree of risk “so marked as to amount substantially to a difference (from gross negligence) in kind.”

Court decisions on the issue of gross negligence, predicated on inconsistent standards, can cut both ways, some favoring the plaintiff and others the defendant. In Jackson v. Taylor, Dr. James Taylor prescribed birth control pills for plaintiff Lois Jackson, who subsequently developed bleeding liver tumors allegedly caused by the birth control pills. The plaintiff's expert testified that Dr. Taylor's acts and omissions demonstrated his conscious indifference to the welfare of his patient (Jackson v. Taylor, 912 F.2d 795, 1990). In another case, the Oklahoma Supreme Court ruled that a 61/2-inch clamp left in a surgical incision “might be construed to support a willful, wanton conduct amounting to gross negligence” (Fox v. Oklahoma Memorial Hospital, 774 P.2d 459, 1989).

A recent decision favoring the defendant involved a penicillin-allergic patient who died from massive hemolysis after receiving ceftriaxone (Rocephin). Relying on the gross negligence exception, the plaintiff failed to call an expert witness and lost the case. The Connecticut Supreme Court decided that “the defendant's conduct in administering Rocephin to the decedent and subsequently refusing to treat or to readmit the decedent does not meet the high threshold of egregiousness necessary to fall within the gross negligence exception” (Boone v. William W. Backus Hospital, 864 A.2d 1, 2005).

Contact the author at [email protected].

Question: A patient developed postoperative paralytic ileus with intractable vomiting. The attending doctor inserted a nasogastric tube and administered intravenous fluids in the form of 5% dextrose in water. The patient died 6 days later from hypovolemic shock and cardiac arrhythmias. Serum electrolytes were not measured until the last day, when severe hyponatremia and hypokalemia became evident. A lawsuit for wrongful death alleged gross negligence and sought punitive damages, but no expert witness was called to testify. Which of the following best describes the situation?

A. This is a clear case of gross negligence, a standard of care so low as to shock the conscience.

B. The plaintiff will win; expert testimony is unnecessary because a reasonable layperson would conclude that there was substandard care.

C. Punitive damages are commonly awarded in medical malpractice cases, especially when negligence has caused death or severe neurologic injury.

D. Gross negligence is something more than ordinary negligence, but less than reckless or wanton misconduct.

E. Good Samaritan laws encourage aid to strangers by providing immunity for a defendant who would otherwise be liable for ordinary or gross negligence.

Answer: D. This hypothetical scenario introduces the notion of gross negligence as being different from ordinary negligence, and the legal implications of that distinction. The vast majority of medical malpractice cases allege ordinary rather than gross negligence. While it is agreed that gross negligence denotes something more “substandard” than ordinary negligence, there is no precise legal definition. In some jurisdictions, such as Connecticut, gross negligence may constitute an exception to the need for expert testimony, which is otherwise a requirement to establish medical negligence. In the above scenario, the jury may be allowed to determine liability without expert testimony only if the doctor's misconduct was so obvious as to constitute gross negligence—by no means a foregone conclusion.

Compensatory damages are the norm for medical plaintiffs who prevail. Punitive damages may occasionally be awarded when gross negligence is proved, but courts in several states have discouraged such awards, absent a malicious intent, so choice C is incorrect. Choice E is also incorrect. To encourage aid to strangers, “Good Samaritan” statutes immunize aid-givers from liability should ordinary negligence result in harm, but such immunity is typically forfeited if there is a finding of gross negligence.

In the medical context, the operational definition of negligence is best referenced in Prosser's Textbook on Torts: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing.” Gross negligence denotes a higher degree of culpability than ordinary negligence, signifying “more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequences.” The California Supreme Court approved the definition of gross negligence as “the want of even scant care or an extreme departure from the ordinary standard of conduct” (Van Meter v. Bent Construction Co., 297 P.2d 644, 1956). Likewise, the law in Texas stipulates: “Gross negligence means more than momentary thoughtlessness, inadvertence or error of judgment. It means an entire want of care as to establish that the act or omission was the result of actual, conscious indifference to the rights, safety and welfare of the person affected” (Texas Civil Practice & Remedies Code § 41.001[7]).

Gross negligence does not have to amount to willful, wanton, or malicious misconduct. It does not even have to reach the level of “reckless disregard.” Thus, in the Restatement (First) of Torts, an authoritative source of law, the authors differentiate reckless disregard from gross negligence by stating that the former creates a degree of risk “so marked as to amount substantially to a difference (from gross negligence) in kind.”

Court decisions on the issue of gross negligence, predicated on inconsistent standards, can cut both ways, some favoring the plaintiff and others the defendant. In Jackson v. Taylor, Dr. James Taylor prescribed birth control pills for plaintiff Lois Jackson, who subsequently developed bleeding liver tumors allegedly caused by the birth control pills. The plaintiff's expert testified that Dr. Taylor's acts and omissions demonstrated his conscious indifference to the welfare of his patient (Jackson v. Taylor, 912 F.2d 795, 1990). In another case, the Oklahoma Supreme Court ruled that a 61/2-inch clamp left in a surgical incision “might be construed to support a willful, wanton conduct amounting to gross negligence” (Fox v. Oklahoma Memorial Hospital, 774 P.2d 459, 1989).

A recent decision favoring the defendant involved a penicillin-allergic patient who died from massive hemolysis after receiving ceftriaxone (Rocephin). Relying on the gross negligence exception, the plaintiff failed to call an expert witness and lost the case. The Connecticut Supreme Court decided that “the defendant's conduct in administering Rocephin to the decedent and subsequently refusing to treat or to readmit the decedent does not meet the high threshold of egregiousness necessary to fall within the gross negligence exception” (Boone v. William W. Backus Hospital, 864 A.2d 1, 2005).

Contact the author at [email protected].

Question: A patient developed postoperative paralytic ileus with intractable vomiting. The attending doctor inserted a nasogastric tube and administered intravenous fluids in the form of 5% dextrose in water. The patient died 6 days later from hypovolemic shock and cardiac arrhythmias. Serum electrolytes were not measured until the last day, when severe hyponatremia and hypokalemia became evident. A lawsuit for wrongful death alleged gross negligence and sought punitive damages, but no expert witness was called to testify. Which of the following best describes the situation?

A. This is a clear case of gross negligence, a standard of care so low as to shock the conscience.

B. The plaintiff will win; expert testimony is unnecessary because a reasonable layperson would conclude that there was substandard care.

C. Punitive damages are commonly awarded in medical malpractice cases, especially when negligence has caused death or severe neurologic injury.

D. Gross negligence is something more than ordinary negligence, but less than reckless or wanton misconduct.

E. Good Samaritan laws encourage aid to strangers by providing immunity for a defendant who would otherwise be liable for ordinary or gross negligence.

Answer: D. This hypothetical scenario introduces the notion of gross negligence as being different from ordinary negligence, and the legal implications of that distinction. The vast majority of medical malpractice cases allege ordinary rather than gross negligence. While it is agreed that gross negligence denotes something more “substandard” than ordinary negligence, there is no precise legal definition. In some jurisdictions, such as Connecticut, gross negligence may constitute an exception to the need for expert testimony, which is otherwise a requirement to establish medical negligence. In the above scenario, the jury may be allowed to determine liability without expert testimony only if the doctor's misconduct was so obvious as to constitute gross negligence—by no means a foregone conclusion.

Compensatory damages are the norm for medical plaintiffs who prevail. Punitive damages may occasionally be awarded when gross negligence is proved, but courts in several states have discouraged such awards, absent a malicious intent, so choice C is incorrect. Choice E is also incorrect. To encourage aid to strangers, “Good Samaritan” statutes immunize aid-givers from liability should ordinary negligence result in harm, but such immunity is typically forfeited if there is a finding of gross negligence.

In the medical context, the operational definition of negligence is best referenced in Prosser's Textbook on Torts: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing.” Gross negligence denotes a higher degree of culpability than ordinary negligence, signifying “more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequences.” The California Supreme Court approved the definition of gross negligence as “the want of even scant care or an extreme departure from the ordinary standard of conduct” (Van Meter v. Bent Construction Co., 297 P.2d 644, 1956). Likewise, the law in Texas stipulates: “Gross negligence means more than momentary thoughtlessness, inadvertence or error of judgment. It means an entire want of care as to establish that the act or omission was the result of actual, conscious indifference to the rights, safety and welfare of the person affected” (Texas Civil Practice & Remedies Code § 41.001[7]).

Gross negligence does not have to amount to willful, wanton, or malicious misconduct. It does not even have to reach the level of “reckless disregard.” Thus, in the Restatement (First) of Torts, an authoritative source of law, the authors differentiate reckless disregard from gross negligence by stating that the former creates a degree of risk “so marked as to amount substantially to a difference (from gross negligence) in kind.”

Court decisions on the issue of gross negligence, predicated on inconsistent standards, can cut both ways, some favoring the plaintiff and others the defendant. In Jackson v. Taylor, Dr. James Taylor prescribed birth control pills for plaintiff Lois Jackson, who subsequently developed bleeding liver tumors allegedly caused by the birth control pills. The plaintiff's expert testified that Dr. Taylor's acts and omissions demonstrated his conscious indifference to the welfare of his patient (Jackson v. Taylor, 912 F.2d 795, 1990). In another case, the Oklahoma Supreme Court ruled that a 61/2-inch clamp left in a surgical incision “might be construed to support a willful, wanton conduct amounting to gross negligence” (Fox v. Oklahoma Memorial Hospital, 774 P.2d 459, 1989).

A recent decision favoring the defendant involved a penicillin-allergic patient who died from massive hemolysis after receiving ceftriaxone (Rocephin). Relying on the gross negligence exception, the plaintiff failed to call an expert witness and lost the case. The Connecticut Supreme Court decided that “the defendant's conduct in administering Rocephin to the decedent and subsequently refusing to treat or to readmit the decedent does not meet the high threshold of egregiousness necessary to fall within the gross negligence exception” (Boone v. William W. Backus Hospital, 864 A.2d 1, 2005).

Contact the author at [email protected].

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema. The plaintiff demanded $500,000, which was then reduced to $300,000; the defendant offered $100,000. The jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

To prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is also known as cause-in-fact, actual cause, or physical cause. It is established with the “but-for” test: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Whereas factual cause is relatively easy to ascertain, proximate cause is not. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable rather than remote. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable for both the original and the aggravated injury (the surgeon is, of course, also liable).

To analyze causation issues systematically, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema. The plaintiff demanded $500,000, which was then reduced to $300,000; the defendant offered $100,000. The jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

To prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is also known as cause-in-fact, actual cause, or physical cause. It is established with the “but-for” test: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Whereas factual cause is relatively easy to ascertain, proximate cause is not. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable rather than remote. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable for both the original and the aggravated injury (the surgeon is, of course, also liable).

To analyze causation issues systematically, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema. The plaintiff demanded $500,000, which was then reduced to $300,000; the defendant offered $100,000. The jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

To prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is also known as cause-in-fact, actual cause, or physical cause. It is established with the “but-for” test: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Whereas factual cause is relatively easy to ascertain, proximate cause is not. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable rather than remote. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable for both the original and the aggravated injury (the surgeon is, of course, also liable).

To analyze causation issues systematically, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Question: Doctors who are most subject to lawsuits:

A. Are ultrabusy practitioners.

B. Have poor interpersonal skills.

C. Talk down to patients.

D. Are often in high-risk specialties such as neurosurgery and obstetrics.

E. All of the above.

Answer: E. All choices are correct. The first three speak to hasty evaluations, poor communication, and arrogance. These behaviors predictably get doctors into trouble. Option D describes doctors who must inevitably deal with catastrophic and tragic injuries, with potentially huge awards for the plaintiff who successfully alleges negligence.

What prompts a lawsuit are poor communication and the perception that the physician is uncaring and at fault for an unfavorable outcome. Yet quality of medical care correlates poorly with malpractice lawsuits. In one study, the quality of treatment as judged by peer review was not different in frequently sued versus never-sued doctors (JAMA 1994;272:1588–91). In another study on the relationship between malpractice and patient satisfaction, patients of doctors with prior malpractice claims reported feeling rushed, feeling ignored, receiving inadequate explanations or advice, and spending less time during routine visits, compared with patients of doctors without prior claims (JAMA 1994;272:1583–7). Communication problems exist in more than 70% of malpractice cases (Arch. Intern. Med. 1994;154:1365–70).

In another study, the authors asked 160 adults to view a videotape of a clinical encounter that resulted in complications. In one scenario, the doctor used positive communication behaviors such as eye contact and a friendly tone of voice, and in another scenario, negative communication behaviors such as not smiling (West J. Med. 1993;158:268–72). The videotape viewers were then asked whether they would be inclined to sue the doctor.

The viewers expressed increased litigious intentions when the physician used negative communication behaviors. These results prompted the authors to state: “Positive communications would result in less litigiousness because the physician is viewed as having cared about the patient and thus having acted in good faith. … Long before there is any medical outcome to be concerned about, the patient may believe that the physician has already done something 'wrong' simply by relating in what is perceived to be an uncaring manner. This may set the stage for later retaliation if something does go wrong.”

The authors offered this advice: “To lower litigation risk by using extra medical procedures and tests, consultation, and extensive documentation, often known as 'defensive medicine,' may miss the point. Defensive medicine is not so much a tool to prevent lawsuits as it is to win them if they do occur. But if the intention is to prevent a lawsuit in the first place, forging a physician-patient bond that can effectively resist the pressure of our litigation-crazed and socially antagonistic society seems indispensable.”

Good advice, indeed. Every effort should be made to communicate effectively, with empathy and tact. Communicating well begins with active listening. Patients want their doctors to listen to them and to explain their conditions and treatment plans in simple, understandable language. The physician should give patients ample opportunity to tell their story and to ask questions. In one well-publicized study, only 23% of patients were able to complete their opening statement before the doctor interrupted, which occurred an average of 18 seconds after the patient began to speak (Ann. Intern. Med. 1984;101:692–6).

Do not hesitate to call the patient or family members at home to remind, reassure, or clarify. This is especially important if the treatment or test procedure had lasted longer than usual, was traumatic, was complicated, or may result in posttreatment complications. Answer or return all patient phone calls in a timely fashion. It is usually best to make the call yourself rather than relegate it to an assistant. Patients appreciate a doctor who has taken the time to personally return a phone call, and appreciative patients usually do not sue. Regarding phone conversations, note the four basic rules: listen and instruct carefully; insist on seeing the patient or have the patient go to the emergency department if there is any doubt; ask the patient (or pharmacist) to repeat your instructions or orders to minimize miscommunication; and document everything in writing. Risk managers warn in particular of calls concerning abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.

Contact the author at [email protected].

Question: Doctors who are most subject to lawsuits:

A. Are ultrabusy practitioners.

B. Have poor interpersonal skills.

C. Talk down to patients.

D. Are often in high-risk specialties such as neurosurgery and obstetrics.

E. All of the above.

Answer: E. All choices are correct. The first three speak to hasty evaluations, poor communication, and arrogance. These behaviors predictably get doctors into trouble. Option D describes doctors who must inevitably deal with catastrophic and tragic injuries, with potentially huge awards for the plaintiff who successfully alleges negligence.

What prompts a lawsuit are poor communication and the perception that the physician is uncaring and at fault for an unfavorable outcome. Yet quality of medical care correlates poorly with malpractice lawsuits. In one study, the quality of treatment as judged by peer review was not different in frequently sued versus never-sued doctors (JAMA 1994;272:1588–91). In another study on the relationship between malpractice and patient satisfaction, patients of doctors with prior malpractice claims reported feeling rushed, feeling ignored, receiving inadequate explanations or advice, and spending less time during routine visits, compared with patients of doctors without prior claims (JAMA 1994;272:1583–7). Communication problems exist in more than 70% of malpractice cases (Arch. Intern. Med. 1994;154:1365–70).

In another study, the authors asked 160 adults to view a videotape of a clinical encounter that resulted in complications. In one scenario, the doctor used positive communication behaviors such as eye contact and a friendly tone of voice, and in another scenario, negative communication behaviors such as not smiling (West J. Med. 1993;158:268–72). The videotape viewers were then asked whether they would be inclined to sue the doctor.

The viewers expressed increased litigious intentions when the physician used negative communication behaviors. These results prompted the authors to state: “Positive communications would result in less litigiousness because the physician is viewed as having cared about the patient and thus having acted in good faith. … Long before there is any medical outcome to be concerned about, the patient may believe that the physician has already done something 'wrong' simply by relating in what is perceived to be an uncaring manner. This may set the stage for later retaliation if something does go wrong.”

The authors offered this advice: “To lower litigation risk by using extra medical procedures and tests, consultation, and extensive documentation, often known as 'defensive medicine,' may miss the point. Defensive medicine is not so much a tool to prevent lawsuits as it is to win them if they do occur. But if the intention is to prevent a lawsuit in the first place, forging a physician-patient bond that can effectively resist the pressure of our litigation-crazed and socially antagonistic society seems indispensable.”

Good advice, indeed. Every effort should be made to communicate effectively, with empathy and tact. Communicating well begins with active listening. Patients want their doctors to listen to them and to explain their conditions and treatment plans in simple, understandable language. The physician should give patients ample opportunity to tell their story and to ask questions. In one well-publicized study, only 23% of patients were able to complete their opening statement before the doctor interrupted, which occurred an average of 18 seconds after the patient began to speak (Ann. Intern. Med. 1984;101:692–6).

Do not hesitate to call the patient or family members at home to remind, reassure, or clarify. This is especially important if the treatment or test procedure had lasted longer than usual, was traumatic, was complicated, or may result in posttreatment complications. Answer or return all patient phone calls in a timely fashion. It is usually best to make the call yourself rather than relegate it to an assistant. Patients appreciate a doctor who has taken the time to personally return a phone call, and appreciative patients usually do not sue. Regarding phone conversations, note the four basic rules: listen and instruct carefully; insist on seeing the patient or have the patient go to the emergency department if there is any doubt; ask the patient (or pharmacist) to repeat your instructions or orders to minimize miscommunication; and document everything in writing. Risk managers warn in particular of calls concerning abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.

Contact the author at [email protected].

Question: Doctors who are most subject to lawsuits:

A. Are ultrabusy practitioners.

B. Have poor interpersonal skills.

C. Talk down to patients.

D. Are often in high-risk specialties such as neurosurgery and obstetrics.

E. All of the above.

Answer: E. All choices are correct. The first three speak to hasty evaluations, poor communication, and arrogance. These behaviors predictably get doctors into trouble. Option D describes doctors who must inevitably deal with catastrophic and tragic injuries, with potentially huge awards for the plaintiff who successfully alleges negligence.

What prompts a lawsuit are poor communication and the perception that the physician is uncaring and at fault for an unfavorable outcome. Yet quality of medical care correlates poorly with malpractice lawsuits. In one study, the quality of treatment as judged by peer review was not different in frequently sued versus never-sued doctors (JAMA 1994;272:1588–91). In another study on the relationship between malpractice and patient satisfaction, patients of doctors with prior malpractice claims reported feeling rushed, feeling ignored, receiving inadequate explanations or advice, and spending less time during routine visits, compared with patients of doctors without prior claims (JAMA 1994;272:1583–7). Communication problems exist in more than 70% of malpractice cases (Arch. Intern. Med. 1994;154:1365–70).

In another study, the authors asked 160 adults to view a videotape of a clinical encounter that resulted in complications. In one scenario, the doctor used positive communication behaviors such as eye contact and a friendly tone of voice, and in another scenario, negative communication behaviors such as not smiling (West J. Med. 1993;158:268–72). The videotape viewers were then asked whether they would be inclined to sue the doctor.

The viewers expressed increased litigious intentions when the physician used negative communication behaviors. These results prompted the authors to state: “Positive communications would result in less litigiousness because the physician is viewed as having cared about the patient and thus having acted in good faith. … Long before there is any medical outcome to be concerned about, the patient may believe that the physician has already done something 'wrong' simply by relating in what is perceived to be an uncaring manner. This may set the stage for later retaliation if something does go wrong.”

The authors offered this advice: “To lower litigation risk by using extra medical procedures and tests, consultation, and extensive documentation, often known as 'defensive medicine,' may miss the point. Defensive medicine is not so much a tool to prevent lawsuits as it is to win them if they do occur. But if the intention is to prevent a lawsuit in the first place, forging a physician-patient bond that can effectively resist the pressure of our litigation-crazed and socially antagonistic society seems indispensable.”

Good advice, indeed. Every effort should be made to communicate effectively, with empathy and tact. Communicating well begins with active listening. Patients want their doctors to listen to them and to explain their conditions and treatment plans in simple, understandable language. The physician should give patients ample opportunity to tell their story and to ask questions. In one well-publicized study, only 23% of patients were able to complete their opening statement before the doctor interrupted, which occurred an average of 18 seconds after the patient began to speak (Ann. Intern. Med. 1984;101:692–6).

Do not hesitate to call the patient or family members at home to remind, reassure, or clarify. This is especially important if the treatment or test procedure had lasted longer than usual, was traumatic, was complicated, or may result in posttreatment complications. Answer or return all patient phone calls in a timely fashion. It is usually best to make the call yourself rather than relegate it to an assistant. Patients appreciate a doctor who has taken the time to personally return a phone call, and appreciative patients usually do not sue. Regarding phone conversations, note the four basic rules: listen and instruct carefully; insist on seeing the patient or have the patient go to the emergency department if there is any doubt; ask the patient (or pharmacist) to repeat your instructions or orders to minimize miscommunication; and document everything in writing. Risk managers warn in particular of calls concerning abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.

Contact the author at [email protected].

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema, not from the use of medications. There being no settlement, the case went to trial, and the jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

In order to prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is established by the use of the “but-for” test, that is: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Proximate cause is not as easily ascertained. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable to the pedestrian for both the original and the aggravated injury (the surgeon is of course also liable).

In a recent Florida case, the District Court of Appeals found several doctors liable for missing the diagnosis of tuberculous meningitis. The court held that since there were multiple doctors involved, i.e., concurring causes, the plaintiff was entitled to concurring-cause jury instruction. The purpose of such instruction was to negate the idea that a defendant is excused from the consequences of negligence by reason of some other cause concurring in time and contributing to the same injury (Hadley v. Terwilleger, 873 So.2d 378 [Fl. 2004]).

On the other hand, an event may occur in the interval between the defendant's negligent act and the plaintiff's injury that breaks the chain of causation. The law, for example, does not hold a defendant liable when an unforeseeable intervening factor has led to an unforeseeable injury. Superseding cause is “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about” (Restatement [Second] of Torts §440).

Suppose an emergency department doctor, Dr. B, missed a fracture on an x-ray. Upon discovering Dr. B's error the following day, the radiologist informed the on-call physician, Dr. C. Unfortunately, Dr. C failed to notify the patient. Did Dr. C's negligence free Dr. B from liability? In a case with similar facts, the 6th Circuit Court held this was a superseding cause relieving the first doctor of liability (Siggers v. Barlow, 906 F.2d 241 [6th Cir. Ky, 1990]).

To analyze causation issues, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” And of course, there can be more than one proximate cause for any given injury. Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Contact the author at [email protected].

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema, not from the use of medications. There being no settlement, the case went to trial, and the jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

In order to prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is established by the use of the “but-for” test, that is: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Proximate cause is not as easily ascertained. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable to the pedestrian for both the original and the aggravated injury (the surgeon is of course also liable).

In a recent Florida case, the District Court of Appeals found several doctors liable for missing the diagnosis of tuberculous meningitis. The court held that since there were multiple doctors involved, i.e., concurring causes, the plaintiff was entitled to concurring-cause jury instruction. The purpose of such instruction was to negate the idea that a defendant is excused from the consequences of negligence by reason of some other cause concurring in time and contributing to the same injury (Hadley v. Terwilleger, 873 So.2d 378 [Fl. 2004]).

On the other hand, an event may occur in the interval between the defendant's negligent act and the plaintiff's injury that breaks the chain of causation. The law, for example, does not hold a defendant liable when an unforeseeable intervening factor has led to an unforeseeable injury. Superseding cause is “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about” (Restatement [Second] of Torts §440).

Suppose an emergency department doctor, Dr. B, missed a fracture on an x-ray. Upon discovering Dr. B's error the following day, the radiologist informed the on-call physician, Dr. C. Unfortunately, Dr. C failed to notify the patient. Did Dr. C's negligence free Dr. B from liability? In a case with similar facts, the 6th Circuit Court held this was a superseding cause relieving the first doctor of liability (Siggers v. Barlow, 906 F.2d 241 [6th Cir. Ky, 1990]).

To analyze causation issues, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” And of course, there can be more than one proximate cause for any given injury. Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Contact the author at [email protected].

Question: An internist prescribed increasing doses of cholestyramine for a patient with hypercholesterolemia with resulting constipation. The constipation worsened after codeine was used to relieve abdominal pain. A month later, the patient experienced severe abdominal distress, and a barium enema revealed a perforated sigmoid colon. She underwent emergency surgery, and the colon was found to be distended, with impacted feces the size of tennis balls. She sued the internist, alleging that his negligence in prescribing the various medications led to the intestinal perforation. Which of the following statements best fits the situation?

A. The internist will lose the case because he should have chosen a statin over a bile acid sequestrant.

B. The internist was negligent when he prescribed codeine in combination with cholestyramine.

C. The patient was fully aware that constipation is a side effect of these medications, and so assumed the risk of injury.

D. The patient has not proved that the bowel perforation was caused by the internist's negligence.

E. The barium enema could have caused the perforation, and the proper party to sue is the radiologist.

Answer: D. Choices A and B may reflect the general medical view, but the use of these approved drugs is determined by the individual clinical situation and may not constitute substandard care. Choice C is incorrect, as the patient can hardly be said to have accepted the risk of a bowel perforation. This hypothetical case is adapted from Roskin v. Rosow (#301356, San Mateo Cty Super. Ct. [Cal. 1987]), which illustrates the importance of the causation factor in tort litigation. The defendant contended that the plaintiff reported only mild constipation, and that the bowel was perforated during the barium enema, not from the use of medications. There being no settlement, the case went to trial, and the jury found for the defendant because the plaintiff did not satisfy the causation element. The radiologist was apparently not sued, perhaps because the statute of limitations had lapsed.

In order to prevail in a medical negligence lawsuit, a plaintiff must prove causation even after establishing that the doctor owes a duty of care and that there has been a breach of the standard of care. There are two types of causation, factual cause and proximate cause, and both must be proved. Factual cause is established by the use of the “but-for” test, that is: “The defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred but for defendant's conduct,” or “the defendant's conduct is a factual cause of plaintiff's injuries if plaintiff's harm would not have occurred without defendant's conduct” (Steven Finz, 1998, “Sum & Substance Audio on Torts”).

Proximate cause is not as easily ascertained. One Court of Appeals has stated: “A plaintiff proves proximate cause, also referred to as legal cause, by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred” (Barrett v. Harris, 86 P.3d 954 [Ariz. 2004]).

The key inquiry in proximate cause analysis is whether the injury was foreseeable. If the defendant could not reasonably have foreseen the resulting harm, the defendant escapes liability. Suppose Mr. A negligently broke the leg of a pedestrian as the result of careless driving. Unfortunately, the injury was worsened by a surgeon's intervening negligence. Because surgical malpractice is foreseeable, the surgeon's negligence is said to be a concurring cause, and Mr. A, the original tortfeasor, becomes liable to the pedestrian for both the original and the aggravated injury (the surgeon is of course also liable).

In a recent Florida case, the District Court of Appeals found several doctors liable for missing the diagnosis of tuberculous meningitis. The court held that since there were multiple doctors involved, i.e., concurring causes, the plaintiff was entitled to concurring-cause jury instruction. The purpose of such instruction was to negate the idea that a defendant is excused from the consequences of negligence by reason of some other cause concurring in time and contributing to the same injury (Hadley v. Terwilleger, 873 So.2d 378 [Fl. 2004]).

On the other hand, an event may occur in the interval between the defendant's negligent act and the plaintiff's injury that breaks the chain of causation. The law, for example, does not hold a defendant liable when an unforeseeable intervening factor has led to an unforeseeable injury. Superseding cause is “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about” (Restatement [Second] of Torts §440).

Suppose an emergency department doctor, Dr. B, missed a fracture on an x-ray. Upon discovering Dr. B's error the following day, the radiologist informed the on-call physician, Dr. C. Unfortunately, Dr. C failed to notify the patient. Did Dr. C's negligence free Dr. B from liability? In a case with similar facts, the 6th Circuit Court held this was a superseding cause relieving the first doctor of liability (Siggers v. Barlow, 906 F.2d 241 [6th Cir. Ky, 1990]).

To analyze causation issues, one has to identify factual cause issues separately from proximate cause issues. To make matters worse, the term “legal cause” is sometimes used interchangeably with “proximate cause.” And of course, there can be more than one proximate cause for any given injury. Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, requiring instead that the jury be simply directed to determine whether the defendant's conduct was a contributory factor in the plaintiff's injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Contact the author at [email protected].

Question: Twenty minutes into an otherwise routine endoscopic examination, the patient sustained a stroke, which left him with cognitive loss and hemiparesis. The etiology was later established to be air embolism. A lawsuit asserts obvious negligence on the part of the gastroenterologist, as the patient was entirely well prior to the procedure. No plaintiff expert was called. Which of the following is correct?

A. This is a case of res ipsa loquitur, which means the tortfeasor takes the patient as he finds him.

B. The plaintiff is alleging res ipsa, as both the identity of the actor and the nature of the injury are known.

C. Since the gastroenterologist had full and exclusive control over the procedure, the jury can impute the fault to him.

D. The average juror in this case should be able to infer that the stroke resulted from a negligent act.

E. If the court accepts the res ipsa theory, the plaintiff does not need an expert witness to testify to the standard of care.

Answer: E. The doctrine of common knowledge, technically called res ipsa loquitur or “the thing speaks for itself,” describes a situation in which the circumstantial evidence is such that a lay juror can form a reasonable belief, so the plaintiff may be entitled to waive the requirement of expert testimony. It raises a presumption of negligence, which is still rebuttable by the defendant. For the doctrine to apply, three conditions must be met: The injury would not have occurred in the absence of someone's negligence, the plaintiff was not at fault, and the defendant had total control of the instrumentality that led to the injury. The facts are insufficient to constitute a clear case of res ipsa, making B and C and D incorrect. Choice A describes the “eggshell skull rule” and is irrelevant here. Thus E is the best answer. (Scenario adapted from Hayes v. Peters, 645 S.E. 2d 846, N.C. 2007.)

Res ipsa had its genesis in the classic 1863 English case where a barrel of flour fell from a window, striking an innocent bystander below (Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299, 1863). In ruling for the plaintiff, the court wrote: “I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had control of it; and in my opinion the fact of its falling is prima facie evidence of negligence.” (A prima facie case means the plaintiff has met the burden of going forward with evidence on the legal issue.)

The res ipsa doctrine is most useful when the plaintiff has insufficient evidence of what caused the negligent act, but circumstances strongly suggest that the defendant was negligent. Res ipsa offers a major advantage to the plaintiff, who may have difficulties securing an expert willing to testify against the doctor-defendant. Still, courts generally hesitate to accept the res ipsa argument, and some states disallow it altogether. For example, an Illinois court rejected the claim that it was common knowledge that someone should be referred to a cardiologist for a heart condition (Evanston Hospital v. Crane, 627 N.E.2d 29, Ill. 1993). In another case, the parents blamed negligent circumcision for painful penile deformity in their child, but lost because the court deemed the evidence insufficient without expert testimony (Walker v. Skiwski, 529 So.2d 184, Miss. 1988).

However, similar cases have gone the other way—for example, where a surgeon operated on the wrong vertebrae (Schwartz v. Abay, 995 P.2d 878, Kan. 1999), or where injuries to the peroneal and tibial nerves occurred after knee surgery (Hale v. Venuto, 137 Cal.App.3d 910, Cal. 1982). And in a well-known California case, the court permitted the use of the res ipsa doctrine against multiple defendants in the operating room after the plaintiff sustained a shoulder injury during an appendectomy (Ybarra v. Spangard, 154 P.2d 687, Cal. 1944). Since the plaintiff was unconscious at the time of injury, the court felt it was appropriate to place the burden on the defendants to explain how the shoulder injury occurred.

Courtroom eloquence concerning res ipsa was at its best in Cassidy, an old English case in which a patient sustained significant injuries following hand surgery for Dupuytren's contracture. His attorney reportedly asserted: “At the outset, only two of the plaintiff's fingers were affected; all four are now useless. There must have been negligence res ipsa” (Cassidy v. Ministry of Health, 2 KB 343, 1951).

Contact the author at [email protected].

Question: Twenty minutes into an otherwise routine endoscopic examination, the patient sustained a stroke, which left him with cognitive loss and hemiparesis. The etiology was later established to be air embolism. A lawsuit asserts obvious negligence on the part of the gastroenterologist, as the patient was entirely well prior to the procedure. No plaintiff expert was called. Which of the following is correct?

A. This is a case of res ipsa loquitur, which means the tortfeasor takes the patient as he finds him.

B. The plaintiff is alleging res ipsa, as both the identity of the actor and the nature of the injury are known.

C. Since the gastroenterologist had full and exclusive control over the procedure, the jury can impute the fault to him.

D. The average juror in this case should be able to infer that the stroke resulted from a negligent act.

E. If the court accepts the res ipsa theory, the plaintiff does not need an expert witness to testify to the standard of care.

Answer: E. The doctrine of common knowledge, technically called res ipsa loquitur or “the thing speaks for itself,” describes a situation in which the circumstantial evidence is such that a lay juror can form a reasonable belief, so the plaintiff may be entitled to waive the requirement of expert testimony. It raises a presumption of negligence, which is still rebuttable by the defendant. For the doctrine to apply, three conditions must be met: The injury would not have occurred in the absence of someone's negligence, the plaintiff was not at fault, and the defendant had total control of the instrumentality that led to the injury. The facts are insufficient to constitute a clear case of res ipsa, making B and C and D incorrect. Choice A describes the “eggshell skull rule” and is irrelevant here. Thus E is the best answer. (Scenario adapted from Hayes v. Peters, 645 S.E. 2d 846, N.C. 2007.)

Res ipsa had its genesis in the classic 1863 English case where a barrel of flour fell from a window, striking an innocent bystander below (Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299, 1863). In ruling for the plaintiff, the court wrote: “I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had control of it; and in my opinion the fact of its falling is prima facie evidence of negligence.” (A prima facie case means the plaintiff has met the burden of going forward with evidence on the legal issue.)

The res ipsa doctrine is most useful when the plaintiff has insufficient evidence of what caused the negligent act, but circumstances strongly suggest that the defendant was negligent. Res ipsa offers a major advantage to the plaintiff, who may have difficulties securing an expert willing to testify against the doctor-defendant. Still, courts generally hesitate to accept the res ipsa argument, and some states disallow it altogether. For example, an Illinois court rejected the claim that it was common knowledge that someone should be referred to a cardiologist for a heart condition (Evanston Hospital v. Crane, 627 N.E.2d 29, Ill. 1993). In another case, the parents blamed negligent circumcision for painful penile deformity in their child, but lost because the court deemed the evidence insufficient without expert testimony (Walker v. Skiwski, 529 So.2d 184, Miss. 1988).

However, similar cases have gone the other way—for example, where a surgeon operated on the wrong vertebrae (Schwartz v. Abay, 995 P.2d 878, Kan. 1999), or where injuries to the peroneal and tibial nerves occurred after knee surgery (Hale v. Venuto, 137 Cal.App.3d 910, Cal. 1982). And in a well-known California case, the court permitted the use of the res ipsa doctrine against multiple defendants in the operating room after the plaintiff sustained a shoulder injury during an appendectomy (Ybarra v. Spangard, 154 P.2d 687, Cal. 1944). Since the plaintiff was unconscious at the time of injury, the court felt it was appropriate to place the burden on the defendants to explain how the shoulder injury occurred.

Courtroom eloquence concerning res ipsa was at its best in Cassidy, an old English case in which a patient sustained significant injuries following hand surgery for Dupuytren's contracture. His attorney reportedly asserted: “At the outset, only two of the plaintiff's fingers were affected; all four are now useless. There must have been negligence res ipsa” (Cassidy v. Ministry of Health, 2 KB 343, 1951).

Contact the author at [email protected].

Question: Twenty minutes into an otherwise routine endoscopic examination, the patient sustained a stroke, which left him with cognitive loss and hemiparesis. The etiology was later established to be air embolism. A lawsuit asserts obvious negligence on the part of the gastroenterologist, as the patient was entirely well prior to the procedure. No plaintiff expert was called. Which of the following is correct?

A. This is a case of res ipsa loquitur, which means the tortfeasor takes the patient as he finds him.

B. The plaintiff is alleging res ipsa, as both the identity of the actor and the nature of the injury are known.

C. Since the gastroenterologist had full and exclusive control over the procedure, the jury can impute the fault to him.

D. The average juror in this case should be able to infer that the stroke resulted from a negligent act.

E. If the court accepts the res ipsa theory, the plaintiff does not need an expert witness to testify to the standard of care.

Answer: E. The doctrine of common knowledge, technically called res ipsa loquitur or “the thing speaks for itself,” describes a situation in which the circumstantial evidence is such that a lay juror can form a reasonable belief, so the plaintiff may be entitled to waive the requirement of expert testimony. It raises a presumption of negligence, which is still rebuttable by the defendant. For the doctrine to apply, three conditions must be met: The injury would not have occurred in the absence of someone's negligence, the plaintiff was not at fault, and the defendant had total control of the instrumentality that led to the injury. The facts are insufficient to constitute a clear case of res ipsa, making B and C and D incorrect. Choice A describes the “eggshell skull rule” and is irrelevant here. Thus E is the best answer. (Scenario adapted from Hayes v. Peters, 645 S.E. 2d 846, N.C. 2007.)

Res ipsa had its genesis in the classic 1863 English case where a barrel of flour fell from a window, striking an innocent bystander below (Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299, 1863). In ruling for the plaintiff, the court wrote: “I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had control of it; and in my opinion the fact of its falling is prima facie evidence of negligence.” (A prima facie case means the plaintiff has met the burden of going forward with evidence on the legal issue.)

The res ipsa doctrine is most useful when the plaintiff has insufficient evidence of what caused the negligent act, but circumstances strongly suggest that the defendant was negligent. Res ipsa offers a major advantage to the plaintiff, who may have difficulties securing an expert willing to testify against the doctor-defendant. Still, courts generally hesitate to accept the res ipsa argument, and some states disallow it altogether. For example, an Illinois court rejected the claim that it was common knowledge that someone should be referred to a cardiologist for a heart condition (Evanston Hospital v. Crane, 627 N.E.2d 29, Ill. 1993). In another case, the parents blamed negligent circumcision for painful penile deformity in their child, but lost because the court deemed the evidence insufficient without expert testimony (Walker v. Skiwski, 529 So.2d 184, Miss. 1988).

However, similar cases have gone the other way—for example, where a surgeon operated on the wrong vertebrae (Schwartz v. Abay, 995 P.2d 878, Kan. 1999), or where injuries to the peroneal and tibial nerves occurred after knee surgery (Hale v. Venuto, 137 Cal.App.3d 910, Cal. 1982). And in a well-known California case, the court permitted the use of the res ipsa doctrine against multiple defendants in the operating room after the plaintiff sustained a shoulder injury during an appendectomy (Ybarra v. Spangard, 154 P.2d 687, Cal. 1944). Since the plaintiff was unconscious at the time of injury, the court felt it was appropriate to place the burden on the defendants to explain how the shoulder injury occurred.

Courtroom eloquence concerning res ipsa was at its best in Cassidy, an old English case in which a patient sustained significant injuries following hand surgery for Dupuytren's contracture. His attorney reportedly asserted: “At the outset, only two of the plaintiff's fingers were affected; all four are now useless. There must have been negligence res ipsa” (Cassidy v. Ministry of Health, 2 KB 343, 1951).

Contact the author at [email protected].

Question: A patient consults her physician for a painful wrist, which is treated with indomethacin. The patient has developed skin rashes caused by various medications in the past, but she does not inform the doctor about this. Shortly after starting indomethacin, she develops Stevens-Johnson syndrome. In regard to an assumption of risk defense, which of the following is true?

A. A patient has a legal duty to reveal to the physician all relevant medical history.

B. Assumption of risk is no longer a valid rule of law.

C. Assumption of risk is an affirmative defense in a tort action and constitutes a complete bar to recovery.

D. Assumption of risk is synonymous with contributory negligence.

E. Giving informed consent is tantamount to assumption of risk.

Answer: C. If a plaintiff is fully aware of the risk to which he or she is exposed, and voluntarily accepts that risk, there will be no recovery of damages if harm results. Known as assumption of risk, it constitutes a complete bar to recovery. This defense has two main elements: a patient's full awareness of the risks, and his or her consent to waive all claims for damages.

In contrast, contributory negligence, which usually serves as a partial rather than complete bar to recovery, arises when negligence by the plaintiff played a part in the resulting injury.

Informed consent is when, after being apprised of the risks and alternatives, a patient gives the physician permission to proceed with diagnosis and treatment. However, this principle says nothing about a patient bearing the risk of harm arising out of negligence or incomplete disclosure by the physician.

The Restatement of Torts defines assumption of risk to mean that the plaintiff fully understands the risk and nonetheless chooses voluntarily to take it (§496-C). One court put it this way: “The doctrine of assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice, either by circumstances or coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury” (Myers v. Boleman, 260 S.E. 2d 359, Ga, 1979).

The assumption of risk defense has been asserted most prominently in sports activities such as boxing, where serious injuries are an integral known risk. Other examples include foolhardy actions, such as “where one tries to beat a rapidly approaching train across the track, to engage in drag racing or to walk upon a frozen pond where the ice is thin” (Myers case, supra).

A physician is expected to obtain a complete medical history, but although the patient is expected to be cooperative, he or she does not have to affirmatively volunteer medical information. A doctor cannot readily invoke this doctrine as a defense simply because the patient has not provided a complete medical history. Thus, in the question above (modified from Hayes v. Hoffman, 296 S.E.2d 216, Ga. 1982), the doctor's assumption of risk defense will likely fail. In the scenario described at the beginning of this column, the patient cannot be assumed to have understood fully the risk of not disclosing her drug allergies. She certainly did not anticipate developing something as serious as Stevens-Johnson syndrome. In a similar case where a patient developed anaphylaxis from using a sulfa-containing drug, an appeals court held that the trial judge erred by instructing the jury that a patient who fails to disclose relevant medical history to a physician has assumed risk of harm (Hawkins v. Greenberg, 283 S.E. 2d 301, Ga, 1981).

But in other situations, an assumption of risk defense may be used successfully. For example, a patient voluntarily and actively sought unorthodox herbal treatment for breast cancer after refusing all conventional therapy. She received full disclosure of the nature of the experimental treatment protocol, and the court therefore rejected her subsequent claim for damages. By giving informed consent to nonconventional experimental therapy in this case, the patient was in effect assuming the risk of harm (Schneider v. Revici, 817 F.2d 987, 2nd Cir. 1987).

In English law, the assumption of risk defense is called volenti non fit injuri (Latin for “to a willing person, no injury is done”). However, knowledge of risk does not necessarily imply consent. For example, a plaintiff who accepted a ride from a drunk driver sustained injuries in a subsequent accident. The court ruled that volenti did not apply unless the drunkenness was so extreme and so obvious that accepting the ride was equivalent to walking on the edge of an unfenced cliff.

Contact the author at [email protected].

Question: A patient consults her physician for a painful wrist, which is treated with indomethacin. The patient has developed skin rashes caused by various medications in the past, but she does not inform the doctor about this. Shortly after starting indomethacin, she develops Stevens-Johnson syndrome. In regard to an assumption of risk defense, which of the following is true?

A. A patient has a legal duty to reveal to the physician all relevant medical history.

B. Assumption of risk is no longer a valid rule of law.

C. Assumption of risk is an affirmative defense in a tort action and constitutes a complete bar to recovery.

D. Assumption of risk is synonymous with contributory negligence.

E. Giving informed consent is tantamount to assumption of risk.

Answer: C. If a plaintiff is fully aware of the risk to which he or she is exposed, and voluntarily accepts that risk, there will be no recovery of damages if harm results. Known as assumption of risk, it constitutes a complete bar to recovery. This defense has two main elements: a patient's full awareness of the risks, and his or her consent to waive all claims for damages.

In contrast, contributory negligence, which usually serves as a partial rather than complete bar to recovery, arises when negligence by the plaintiff played a part in the resulting injury.

Informed consent is when, after being apprised of the risks and alternatives, a patient gives the physician permission to proceed with diagnosis and treatment. However, this principle says nothing about a patient bearing the risk of harm arising out of negligence or incomplete disclosure by the physician.

The Restatement of Torts defines assumption of risk to mean that the plaintiff fully understands the risk and nonetheless chooses voluntarily to take it (§496-C). One court put it this way: “The doctrine of assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice, either by circumstances or coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury” (Myers v. Boleman, 260 S.E. 2d 359, Ga, 1979).

The assumption of risk defense has been asserted most prominently in sports activities such as boxing, where serious injuries are an integral known risk. Other examples include foolhardy actions, such as “where one tries to beat a rapidly approaching train across the track, to engage in drag racing or to walk upon a frozen pond where the ice is thin” (Myers case, supra).

A physician is expected to obtain a complete medical history, but although the patient is expected to be cooperative, he or she does not have to affirmatively volunteer medical information. A doctor cannot readily invoke this doctrine as a defense simply because the patient has not provided a complete medical history. Thus, in the question above (modified from Hayes v. Hoffman, 296 S.E.2d 216, Ga. 1982), the doctor's assumption of risk defense will likely fail. In the scenario described at the beginning of this column, the patient cannot be assumed to have understood fully the risk of not disclosing her drug allergies. She certainly did not anticipate developing something as serious as Stevens-Johnson syndrome. In a similar case where a patient developed anaphylaxis from using a sulfa-containing drug, an appeals court held that the trial judge erred by instructing the jury that a patient who fails to disclose relevant medical history to a physician has assumed risk of harm (Hawkins v. Greenberg, 283 S.E. 2d 301, Ga, 1981).

But in other situations, an assumption of risk defense may be used successfully. For example, a patient voluntarily and actively sought unorthodox herbal treatment for breast cancer after refusing all conventional therapy. She received full disclosure of the nature of the experimental treatment protocol, and the court therefore rejected her subsequent claim for damages. By giving informed consent to nonconventional experimental therapy in this case, the patient was in effect assuming the risk of harm (Schneider v. Revici, 817 F.2d 987, 2nd Cir. 1987).

In English law, the assumption of risk defense is called volenti non fit injuri (Latin for “to a willing person, no injury is done”). However, knowledge of risk does not necessarily imply consent. For example, a plaintiff who accepted a ride from a drunk driver sustained injuries in a subsequent accident. The court ruled that volenti did not apply unless the drunkenness was so extreme and so obvious that accepting the ride was equivalent to walking on the edge of an unfenced cliff.

Contact the author at [email protected].

Question: A patient consults her physician for a painful wrist, which is treated with indomethacin. The patient has developed skin rashes caused by various medications in the past, but she does not inform the doctor about this. Shortly after starting indomethacin, she develops Stevens-Johnson syndrome. In regard to an assumption of risk defense, which of the following is true?

A. A patient has a legal duty to reveal to the physician all relevant medical history.

B. Assumption of risk is no longer a valid rule of law.

C. Assumption of risk is an affirmative defense in a tort action and constitutes a complete bar to recovery.

D. Assumption of risk is synonymous with contributory negligence.

E. Giving informed consent is tantamount to assumption of risk.

Answer: C. If a plaintiff is fully aware of the risk to which he or she is exposed, and voluntarily accepts that risk, there will be no recovery of damages if harm results. Known as assumption of risk, it constitutes a complete bar to recovery. This defense has two main elements: a patient's full awareness of the risks, and his or her consent to waive all claims for damages.

In contrast, contributory negligence, which usually serves as a partial rather than complete bar to recovery, arises when negligence by the plaintiff played a part in the resulting injury.

Informed consent is when, after being apprised of the risks and alternatives, a patient gives the physician permission to proceed with diagnosis and treatment. However, this principle says nothing about a patient bearing the risk of harm arising out of negligence or incomplete disclosure by the physician.

The Restatement of Torts defines assumption of risk to mean that the plaintiff fully understands the risk and nonetheless chooses voluntarily to take it (§496-C). One court put it this way: “The doctrine of assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice, either by circumstances or coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury” (Myers v. Boleman, 260 S.E. 2d 359, Ga, 1979).

The assumption of risk defense has been asserted most prominently in sports activities such as boxing, where serious injuries are an integral known risk. Other examples include foolhardy actions, such as “where one tries to beat a rapidly approaching train across the track, to engage in drag racing or to walk upon a frozen pond where the ice is thin” (Myers case, supra).

A physician is expected to obtain a complete medical history, but although the patient is expected to be cooperative, he or she does not have to affirmatively volunteer medical information. A doctor cannot readily invoke this doctrine as a defense simply because the patient has not provided a complete medical history. Thus, in the question above (modified from Hayes v. Hoffman, 296 S.E.2d 216, Ga. 1982), the doctor's assumption of risk defense will likely fail. In the scenario described at the beginning of this column, the patient cannot be assumed to have understood fully the risk of not disclosing her drug allergies. She certainly did not anticipate developing something as serious as Stevens-Johnson syndrome. In a similar case where a patient developed anaphylaxis from using a sulfa-containing drug, an appeals court held that the trial judge erred by instructing the jury that a patient who fails to disclose relevant medical history to a physician has assumed risk of harm (Hawkins v. Greenberg, 283 S.E. 2d 301, Ga, 1981).

But in other situations, an assumption of risk defense may be used successfully. For example, a patient voluntarily and actively sought unorthodox herbal treatment for breast cancer after refusing all conventional therapy. She received full disclosure of the nature of the experimental treatment protocol, and the court therefore rejected her subsequent claim for damages. By giving informed consent to nonconventional experimental therapy in this case, the patient was in effect assuming the risk of harm (Schneider v. Revici, 817 F.2d 987, 2nd Cir. 1987).

In English law, the assumption of risk defense is called volenti non fit injuri (Latin for “to a willing person, no injury is done”). However, knowledge of risk does not necessarily imply consent. For example, a plaintiff who accepted a ride from a drunk driver sustained injuries in a subsequent accident. The court ruled that volenti did not apply unless the drunkenness was so extreme and so obvious that accepting the ride was equivalent to walking on the edge of an unfenced cliff.

Contact the author at [email protected].

Question: A patient developed severe headache and neck stiffness, which the emergency department (ED) doctor (ED-1) incorrectly diagnosed as a viral infection. The patient went home, but her condition did not improve, so her husband called the ED, where the on-call doctor (ED-2) answered some questions but did not encourage reevaluation because the ED was extremely busy at the time. The patient's condition deteriorated rapidly; she subsequently died, and autopsy revealed a massive subarachnoid bleed. Her husband sued both of the ED doctors as well as the hospital for malpractice. Neither ED-1 nor ED-2 is a hospital employee; they work as independent contractors and derive no salary or fringe benefits from the hospital. A prominent sign at the hospital entrance features these words: “Emergency Services: Physician on duty 24 hours.” Which of the following choices is correct?

A. ED-1 is not liable because he met the standard of care.

B. ED-2 is not liable because there was no doctor-patient relationship.

C. The hospital cannot be liable because it is not a person.

D. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are akin to being employees.

E. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are perceived as agents.

Answer: E. Whether ED-1 is liable will depend on whether the original medical history and physical findings were sufficient to raise the diagnosis of a subarachnoid bleed, and whether appropriate studies were undertaken. ED-1 will be judged by the standard ordinarily expected of any physician under similar circumstances. Although ED-2 did not directly examine the patient, there was a discussion with the husband, so it is likely ED-2 will be deemed to have established a doctor-patient relationship. Whether ED-2 breached the standard of care by failing to ask the patient to immediately return to the hospital will depend on the questions asked and the answers received. However, a busy ED is insufficient reason to dissuade a patient from being reevaluated if customary standards so dictate.

Any entity, not only a person, can be held liable for civil damages. Hospitals can therefore be asked to pay damages for any number of reasons, such as direct negligence, premise liability, etc. Vicarious liability is indirect legal liability, typically arising from an employer-employee relationship, which is not the situation here. However, vicarious liability can also arise from a principal-agent relationship, and under some circumstances, an independent contractor can be deemed to be an agent. The plaintiff will likely plead this theory by casting the ED physicians as ostensible agents; in other words, the hospital has held itself out to the public as a provider of care, as evidenced by the hospital sign that ED doctors were on duty 24 hours a day.

How can hospitals be held liable for the negligent acts of its doctors and staff? Vicarious liability is a legal doctrine in which a party is held legally responsible for the negligence of another because of its relationship to the wrongdoer. Courts have generally used the employer-employee or the agency principle to hold a hospital vicariously liable for the negligence of its health care providers. Where there is an employer-employee relationship (e.g., nurses and some doctors hired by the hospital), respondeat superior is the basis for liability. Respondeat superior means “let the master answer.” The idea behind this rule is to ensure that the employer, as supervisor, will enforce the proper work standards to avoid risk of harm.

Where the negligent actor is an independent contractor rather than an employee, respondeat will not apply. An institution usually does not exercise substantial control over the actions of independent contractors. Most doctors who work in private hospitals are independent contractors, as they do not draw a hospital salary, nor are their work hours and work duties controlled or defined by the hospital. Having physicians as independent contractors instead of employees thus inoculates the hospital from vicarious liability.

However, depending on the facts, some courts have used an underlying agency relationship to impute liability to the hospital (Sword v. NKC Hospitals, Inc., 714 N.E. 2d 142, Ind., 1999). Agency may be established if there is some degree of control, even if minimal, that is exerted on the doctor, especially where patients are not informed that their treating doctors are independent contractors. The relationship may be construed as an apparent or ostensible agency, where there is some representation that the doctor works for the hospital. Alternatively, when the patient relies on the hospital in seeking treatment, it is called agency by estoppel. Finally, courts have occasionally used the legal doctrine of nondelegable duty to find a hospital liable, holding that the services provided, as in the radiology or emergency departments, are a hospital's “inherent function.”

A recent Florida case that received prominent media coverage illustrates the issue of vicarious liability: The ship's doctor aboard a Carnival cruise ship failed to diagnose acute appendicitis in a 14-year-old girl with several days of abdominal symptoms. The patient's appendix ruptured, which eventually resulted in sterility. The parents sued the cruise line as a codefendant, which denied liability because the doctor was not an employee, a fact specifically disclosed on the cruise ticket. Although the doctor's contract stated that he was an independent contractor, the District Court of Appeal of Florida reasoned that in a claim based on agency, it is the right of control rather than actual control itself that matters. It therefore held that “for purposes of fulfilling cruise line's duty to exercise reasonable care, ship's doctor is an agent of cruise line whose negligence should be imputed to cruise line, regardless of contractual status ascribed to doctor” (Carlisle v. Carnival Corp., et al., 864 So.2d 1, 2003). However, the Florida Supreme Court subsequently quashed this decision because federal maritime law protects shipowners from liability flowing from the medical negligence of shipboard physicians (Carlisle v. Carnival Corp., et al., 953 So.2d 461, 2007).

Contact the author at [email protected].

Question: A patient developed severe headache and neck stiffness, which the emergency department (ED) doctor (ED-1) incorrectly diagnosed as a viral infection. The patient went home, but her condition did not improve, so her husband called the ED, where the on-call doctor (ED-2) answered some questions but did not encourage reevaluation because the ED was extremely busy at the time. The patient's condition deteriorated rapidly; she subsequently died, and autopsy revealed a massive subarachnoid bleed. Her husband sued both of the ED doctors as well as the hospital for malpractice. Neither ED-1 nor ED-2 is a hospital employee; they work as independent contractors and derive no salary or fringe benefits from the hospital. A prominent sign at the hospital entrance features these words: “Emergency Services: Physician on duty 24 hours.” Which of the following choices is correct?

A. ED-1 is not liable because he met the standard of care.

B. ED-2 is not liable because there was no doctor-patient relationship.

C. The hospital cannot be liable because it is not a person.

D. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are akin to being employees.

E. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are perceived as agents.

Answer: E. Whether ED-1 is liable will depend on whether the original medical history and physical findings were sufficient to raise the diagnosis of a subarachnoid bleed, and whether appropriate studies were undertaken. ED-1 will be judged by the standard ordinarily expected of any physician under similar circumstances. Although ED-2 did not directly examine the patient, there was a discussion with the husband, so it is likely ED-2 will be deemed to have established a doctor-patient relationship. Whether ED-2 breached the standard of care by failing to ask the patient to immediately return to the hospital will depend on the questions asked and the answers received. However, a busy ED is insufficient reason to dissuade a patient from being reevaluated if customary standards so dictate.

Any entity, not only a person, can be held liable for civil damages. Hospitals can therefore be asked to pay damages for any number of reasons, such as direct negligence, premise liability, etc. Vicarious liability is indirect legal liability, typically arising from an employer-employee relationship, which is not the situation here. However, vicarious liability can also arise from a principal-agent relationship, and under some circumstances, an independent contractor can be deemed to be an agent. The plaintiff will likely plead this theory by casting the ED physicians as ostensible agents; in other words, the hospital has held itself out to the public as a provider of care, as evidenced by the hospital sign that ED doctors were on duty 24 hours a day.

How can hospitals be held liable for the negligent acts of its doctors and staff? Vicarious liability is a legal doctrine in which a party is held legally responsible for the negligence of another because of its relationship to the wrongdoer. Courts have generally used the employer-employee or the agency principle to hold a hospital vicariously liable for the negligence of its health care providers. Where there is an employer-employee relationship (e.g., nurses and some doctors hired by the hospital), respondeat superior is the basis for liability. Respondeat superior means “let the master answer.” The idea behind this rule is to ensure that the employer, as supervisor, will enforce the proper work standards to avoid risk of harm.

Where the negligent actor is an independent contractor rather than an employee, respondeat will not apply. An institution usually does not exercise substantial control over the actions of independent contractors. Most doctors who work in private hospitals are independent contractors, as they do not draw a hospital salary, nor are their work hours and work duties controlled or defined by the hospital. Having physicians as independent contractors instead of employees thus inoculates the hospital from vicarious liability.

However, depending on the facts, some courts have used an underlying agency relationship to impute liability to the hospital (Sword v. NKC Hospitals, Inc., 714 N.E. 2d 142, Ind., 1999). Agency may be established if there is some degree of control, even if minimal, that is exerted on the doctor, especially where patients are not informed that their treating doctors are independent contractors. The relationship may be construed as an apparent or ostensible agency, where there is some representation that the doctor works for the hospital. Alternatively, when the patient relies on the hospital in seeking treatment, it is called agency by estoppel. Finally, courts have occasionally used the legal doctrine of nondelegable duty to find a hospital liable, holding that the services provided, as in the radiology or emergency departments, are a hospital's “inherent function.”

A recent Florida case that received prominent media coverage illustrates the issue of vicarious liability: The ship's doctor aboard a Carnival cruise ship failed to diagnose acute appendicitis in a 14-year-old girl with several days of abdominal symptoms. The patient's appendix ruptured, which eventually resulted in sterility. The parents sued the cruise line as a codefendant, which denied liability because the doctor was not an employee, a fact specifically disclosed on the cruise ticket. Although the doctor's contract stated that he was an independent contractor, the District Court of Appeal of Florida reasoned that in a claim based on agency, it is the right of control rather than actual control itself that matters. It therefore held that “for purposes of fulfilling cruise line's duty to exercise reasonable care, ship's doctor is an agent of cruise line whose negligence should be imputed to cruise line, regardless of contractual status ascribed to doctor” (Carlisle v. Carnival Corp., et al., 864 So.2d 1, 2003). However, the Florida Supreme Court subsequently quashed this decision because federal maritime law protects shipowners from liability flowing from the medical negligence of shipboard physicians (Carlisle v. Carnival Corp., et al., 953 So.2d 461, 2007).

Contact the author at [email protected].

Question: A patient developed severe headache and neck stiffness, which the emergency department (ED) doctor (ED-1) incorrectly diagnosed as a viral infection. The patient went home, but her condition did not improve, so her husband called the ED, where the on-call doctor (ED-2) answered some questions but did not encourage reevaluation because the ED was extremely busy at the time. The patient's condition deteriorated rapidly; she subsequently died, and autopsy revealed a massive subarachnoid bleed. Her husband sued both of the ED doctors as well as the hospital for malpractice. Neither ED-1 nor ED-2 is a hospital employee; they work as independent contractors and derive no salary or fringe benefits from the hospital. A prominent sign at the hospital entrance features these words: “Emergency Services: Physician on duty 24 hours.” Which of the following choices is correct?

A. ED-1 is not liable because he met the standard of care.

B. ED-2 is not liable because there was no doctor-patient relationship.

C. The hospital cannot be liable because it is not a person.

D. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are akin to being employees.

E. The hospital may be vicariously liable for the negligence of both ED-1 and ED-2 because they are perceived as agents.

Answer: E. Whether ED-1 is liable will depend on whether the original medical history and physical findings were sufficient to raise the diagnosis of a subarachnoid bleed, and whether appropriate studies were undertaken. ED-1 will be judged by the standard ordinarily expected of any physician under similar circumstances. Although ED-2 did not directly examine the patient, there was a discussion with the husband, so it is likely ED-2 will be deemed to have established a doctor-patient relationship. Whether ED-2 breached the standard of care by failing to ask the patient to immediately return to the hospital will depend on the questions asked and the answers received. However, a busy ED is insufficient reason to dissuade a patient from being reevaluated if customary standards so dictate.

Any entity, not only a person, can be held liable for civil damages. Hospitals can therefore be asked to pay damages for any number of reasons, such as direct negligence, premise liability, etc. Vicarious liability is indirect legal liability, typically arising from an employer-employee relationship, which is not the situation here. However, vicarious liability can also arise from a principal-agent relationship, and under some circumstances, an independent contractor can be deemed to be an agent. The plaintiff will likely plead this theory by casting the ED physicians as ostensible agents; in other words, the hospital has held itself out to the public as a provider of care, as evidenced by the hospital sign that ED doctors were on duty 24 hours a day.

How can hospitals be held liable for the negligent acts of its doctors and staff? Vicarious liability is a legal doctrine in which a party is held legally responsible for the negligence of another because of its relationship to the wrongdoer. Courts have generally used the employer-employee or the agency principle to hold a hospital vicariously liable for the negligence of its health care providers. Where there is an employer-employee relationship (e.g., nurses and some doctors hired by the hospital), respondeat superior is the basis for liability. Respondeat superior means “let the master answer.” The idea behind this rule is to ensure that the employer, as supervisor, will enforce the proper work standards to avoid risk of harm.

Where the negligent actor is an independent contractor rather than an employee, respondeat will not apply. An institution usually does not exercise substantial control over the actions of independent contractors. Most doctors who work in private hospitals are independent contractors, as they do not draw a hospital salary, nor are their work hours and work duties controlled or defined by the hospital. Having physicians as independent contractors instead of employees thus inoculates the hospital from vicarious liability.

However, depending on the facts, some courts have used an underlying agency relationship to impute liability to the hospital (Sword v. NKC Hospitals, Inc., 714 N.E. 2d 142, Ind., 1999). Agency may be established if there is some degree of control, even if minimal, that is exerted on the doctor, especially where patients are not informed that their treating doctors are independent contractors. The relationship may be construed as an apparent or ostensible agency, where there is some representation that the doctor works for the hospital. Alternatively, when the patient relies on the hospital in seeking treatment, it is called agency by estoppel. Finally, courts have occasionally used the legal doctrine of nondelegable duty to find a hospital liable, holding that the services provided, as in the radiology or emergency departments, are a hospital's “inherent function.”

A recent Florida case that received prominent media coverage illustrates the issue of vicarious liability: The ship's doctor aboard a Carnival cruise ship failed to diagnose acute appendicitis in a 14-year-old girl with several days of abdominal symptoms. The patient's appendix ruptured, which eventually resulted in sterility. The parents sued the cruise line as a codefendant, which denied liability because the doctor was not an employee, a fact specifically disclosed on the cruise ticket. Although the doctor's contract stated that he was an independent contractor, the District Court of Appeal of Florida reasoned that in a claim based on agency, it is the right of control rather than actual control itself that matters. It therefore held that “for purposes of fulfilling cruise line's duty to exercise reasonable care, ship's doctor is an agent of cruise line whose negligence should be imputed to cruise line, regardless of contractual status ascribed to doctor” (Carlisle v. Carnival Corp., et al., 864 So.2d 1, 2003). However, the Florida Supreme Court subsequently quashed this decision because federal maritime law protects shipowners from liability flowing from the medical negligence of shipboard physicians (Carlisle v. Carnival Corp., et al., 953 So.2d 461, 2007).

Contact the author at [email protected].

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.