Adverse events will happen to you throughout your career. It’s just an accepted eventuality from providing medical care. It might be completely beyond our control or through a mistake we made. We try everything we can to prevent them, but sometimes they just happen.
But not all adverse events are considered medical malpractice. This has, in part, to do with how the law created a definition that constitutes what is malpractice. In our recent interview the founder of Thrive, Stacia Dearmin MD, breaks down the 4 criteria for an event to be considered medical malpractice.
This is an excerpt from our interview.
How the Law Defines Medical Malpractice?
So how the law defines medical malpractice, very closely ties to how the law defines standard of care. But there is a larger definition. In order to prove that medical malpractice has occurred, the plaintiffs’ attorneys will have to prove number one, that the person the lawsuit has been filed against had a duty to provide care to the patient.
Now, in some instances, that is super obvious. Like if you take a patient to the OR to provide them anesthesia, then you have a duty to properly provide anesthesia to the best of your ability.
But in other instances, it’s less clear. Suppose a radiologist reads an outpatient study. And the primary care doctor who’s in solo practice, who ordered it, is on vacation and “someone else” is covering. Did that “someone else” who was covering have a duty to look for that report and did the radiologists have a duty to reach out to that “someone”who is covering. There can be more confounding factors in some circumstances around who had a duty to the patient and who did not.
That’s the first thing that they have to prove, they have to prove that the person had a duty to provide care. The second thing they have to prove is that the care that was provided deviated from the standard of care.
Standard of Care
Deviation from the standard of care, which as we talked about in another article, relates to what a reasonable physician or other practitioner would do under the same or similar circumstances. And this can be either an error of omission or commission that they’re trying to prove. You did something you shouldn’t have done (commission) or you didn’t do what you should have done (omission), either way, that can be a deviation.
The third thing that they have to prove is that deviation directly caused the injury they’re alleging to the patient. So if you did something that, maybe you look back on a decision that was not a good thing to do, but it didn’t directly cause whatever problem evolved for the patient, then the two are not linked. This does not meet the third criteria for malpractice.
Monetary Damages
Lastly, you have to prove that this is something that can be articulated in monetary terms, that’s what people refer to as damages. If there are no significant damages, then as the law looks at it, they’ve not met the standard of proving medical malpractice.
So, all four things have to be true. You have to have a duty; you have to have deviated from the standard of care. The deviation has to prove directly caused the patient’s injury, whatever that might be. And lastly, you have to prove some kind of monetary damages in order for the law to consider that medical malpractice has occurred.
Disclaimer: This article is for educational purposes only. Nothing in this presentation constitutes legal advice.
