Negligence Primer July 2012
A 12-year-old patient presents to the Emergency Department after falling off his skateboard and landing on his right side. He is complaining of pain in his neck and right wrist. X-rays of the chest, c-spine and right wrist are reported as showing only a fracture of the right wrist. The wrist is splinted and the patient is referred to an orthopedist for follow-up care. The orthopedist reviews the films and casts the wrist. At that same orthopedist office six weeks later, a different physician reviews the films and identifies non-displaced fractures of the right 4th and 5th ribs, not previously reported. The physician informs the patient and his parents of the findings and explains no medical treatment is needed for the injury.
To the surprise of all practitioners, the family brings suit against the hospital, the Emergency Department physician, radiologist, the first orthopedist and his practice group. The suit alleges that all of the named parties were negligent because they failed to diagnose the rib fractures. Will the plaintiff prevail?
As a practitioner, analysis of clinical information becomes second nature. Physicians are trained to rely on their observation and assessment skills in their practice. So when that self reliance and situational familiarity are taken away, stress levels can rise. While stress during the litigation process is inevitable, having a clear understanding of the legal analysis and components of a negligence claim may help decrease unnecessary anxiety.
When faced with a claim of medical malpractice, physicians are thrown into unfamiliar and uncomfortable territory. The nuances of legal terms can be confusing. Frustration mounts when every detail of the care provided is pulled apart and questioned during the discovery phase of litigation and finally in the court room.
A claim of medical malpractice can be raised by anyone. However, once that claim is raised, it undergoes a systematic analysis to determine whether, under a legal standard, negligence actually occurred and is compensable.
There are four elements of a negligence claim: duty, a breach of that duty, injury and causation. The burden to prove all of these elements exist falls upon the plaintiff. All four elements must be present for a claim of negligence to be upheld by the courts.
The first element of negligence is a duty of care. In the context of professional liability, duty usually applies when the provider undertakes to care for a patient. The second element is a breach of the identified duty of care. The breach can occur in one of three ways: misfeasance, (doing what you should not), nonfeasance, (not doing what you should) or malfeasance, (an unjust act that the do’er had no right to perform or had stipulated by contract not to do). You are judged by a prevailing standard of care. If you undertake a duty, you must perform it according to the acceptable standard of care. That standard of care is a measure of the competency of a medical professional. It is the typical level of skilled care and diligence exercised by members of the same professional or specialized field in light of the present state of medical and surgical science. What are your peers doing? Does your care fall in line with the acceptable practice methods of the day?
The third element is injury. Regardless of the physician’s alleged acts, the plaintiff must show some type of legally compensable injury occurred. This can be in the form of physical harm, emotional injury or lost income.
Lastly, there must be causation. The plaintiff must show that the physician’s breach of duty was a substantial factor in causing the harm or injury. Even if there was a breach of duty while providing care, if that act or breach did not substantially cause or contribute to the plaintiff’s injury, then it cannot be asserted to satisfy the element of causation for a finding of negligence.
Analyzing the situation above using the four elements of negligence, does the plaintiff have a viable legal claim of negligence?
- Was there a duty of care? Clearly the physicians undertook a duty of care.
- Was there a breach if care? Yes, all practitioners failed to diagnose the non-displaced fractures of the ribs.
- Was there injury? Yes, the patient had fractured ribs.
- Was the physician’s breach of duty a significant factor in the causing the plaintiff’s injury? No.
The failure to diagnose the rib fractures did not cause the resultant injury, the fractures occurred prior to care being provided and nothing the physician did worsened the condition of the fracture. No treatment or intervention was necessary as a result of the finding. The fractures were healing without intervention.
The plaintiff did not meet the burden of proof to sustain a viable claim of negligence. While the three elements of duty, breach of duty and injury were present, causation was missing. The breach or failure to diagnose was not the cause of the injury. Verdict for the Defense!
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