Medical Malpractice

HISTORY

The concept of medical liability has been around since ancient times, with different perspectives from across cultures and eras.¹ Concrete texts can be found as far back as 1900 BC, when the Babylonian, Hammurabi Code described the kind of care a physician should give, with associated fees and penalties for aspects of care in violation. This code was simple: if the doctor treated a patient successfully, he was rewarded and if the treatment was unsuccessful, then the doctor was punished.² Grecian philosophers, Aristotle and Plato, had differing views. Plato supported the idea that if a doctor gave his best effort, that would be enough to acquit him of all liability. Aristotle on the other hand, believed that the depth of medical knowledge and adequacy of effectiveness could be determined by another doctor. The Hippocratic Oath is worth mentioning, as it espouses principles for teachers and students of medicine to each other, and to patients.³ The physician pledges to only administer beneficial treatments, to cause no harm, and to live an exemplary life. In other texts, such as the Holy Bible, if the doctor followed the practice as taught, he would not be punished regardless of the outcome.² In these latter concepts, we see the foundations for some of the modern principles in use today.

TORT AND CRIMINAL LAW

Common law is a legal tradition that emerged in England, which relied on past case rulings to guide future decisions. These unwritten principles have guided the development of tort law (civil) or criminal law that applies when a person seeks remedy for wrong doing.

Over time, they have evolved with separate and distinct features. Criminal law involves “public” wrongs; tort law involves “private” wrongs.⁴

The state (public) prosecutes violations of criminal law, and the victim’s consent is unnecessary. Criminal law does not require that there is harm. It punishes acts that are harmful to others or to the actor being punished; potentially dangerous acts; and those considered immoral by the community.⁴

In tort law, the victim (private) decides whether to bring a tort claim and is free to choose not to do so. Tort law requires harm to justify a remedy. It does not remedy the potential for future harm or immoral harm. The remedy is not necessarily proportional, meaning that differing culpability for the same harm may get the same remedy. Children and the insane may also be liable for torts, and generally, they are not criminally responsible.⁴

ELEMENTS OF MEDICAL MALPRACTICE

According to the American Bar Association, medical malpractice is negligence committed by a professional health care provider—a physician, nurse, dentist, technician, hospital, or hospital worker—whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients.⁵

A simple error does not constitute medical malpractice. To prove a medical malpractice lawsuit, the plaintiff must establish 4 elements: causation, duty to the patient, negligence or breach of duty, and damages.⁶

Causation

Did the action or omission cause a poor outcome? For example, did missing the diagnosis of sepsis lead to a patient’s death, or was it due to pre-existing conditions like myocardial infarction, diabetes, hypertension, hyperlipidemia, and smoking?

Duty to the Patient

Was the doctor responsible for the patient’s care? This can be shown through various means, such as being on call, covering for a colleague, or treating patients in a clinic.

Negligence or Breach of Duty

Was the clinician negligent? This is defined by the standard of care: a reasonable physician’s actions in the community with similar training and experience. Examples include removing the wrong organ or operating in nonsterile conditions leading to an infection.

Damages

Compensation for loss or injury, medical bills, punitive damages, and sometimes an apology from the doctor. The question is whether the act of malpractice warrants financial compensation for the patient.

STEPS OF A MEDICAL MALPRACTICE LAWSUIT

When a professional health care provider is sued, the psychological and emotional stress can be overwhelming. Understanding each stage of the process can offer confidence and guidance as the lawsuit proceeds. It starts with the inception of the case, the summons, and complaint, then progresses to discovery, including document production, interrogatories, and deposition, and thereafter to settlement or trial.⁷

There are 3 phases to be aware of in the evolution of a medical malpractice lawsuit. Phase 1 is the inception of the case with the presuit notice period. Phase 2 is the life of the lawsuit and Phase 3 is the trial.⁸

Phase 1: Presuit Notice Period

The presuit notice period is crucial because a physician often receives notice of a claim before consulting a lawyer. Understanding this significance helps the provider to respond proactively and to avoid harmful conduct.

The legal process commonly starts when a physician gets a notice letter from a plaintiff’s attorney indicating an intent to sue and encouraging presuit negotiations and settlement. Note that the letter is not a lawsuit but merely informs physicians of potential claims.

Once a notice letter is received, the health care provider should immediately notify their malpractice insurance carrier and forward relevant documents to them. Prompt notification initiates insurance coverage; delaying may jeopardize it. The provider should always notify the carrier of anything resembling a legal claim or contact from a plaintiff’s lawyer considering a claim. This allows experienced professionals to evaluate and protect the physician’s interests.

After receiving a notice letter, securing the patient’s chart without making any changes is appropriate. Any alteration to the chart can negatively impact the lawsuit. Avoiding discussing the claim with colleagues is paramount, as such conversations may need recounting in court, potentially harming the physician’s position. Claims are only discussed with the insurance carrier and lawyer.

Phase 2: The Life of a Lawsuit⁸

A lawsuit formally begins with the filing of a petition in court, service of the petition and citation on the defendant physician. Upon receipt of service, the physician must promptly notify their insurance carrier to ensure an answer can be filed within the appropriate timeframe. It is advisable to contact the carrier by phone first and then immediately forward a copy of the citation and petition. The carrier will assign a lawyer, if not already done so, and forward all material to the lawyer to initiate the defense. The lawyer must file an answer within the prescribed deadline to prevent the plaintiff from obtaining a default judgment against the defendant and begin proceedings to execute on the physician’s assets for the judgment amount. Discovery requests may accompany the petition. These materials are also time-sensitive and must be forwarded immediately to the insurance carrier.

Once the lawsuit has been filed, the discovery phase commences. During discovery, each party can obtain relevant information and documents from other parties involved. The standard for discovery is broad; information and documents are considered discoverable if they are likely to lead to admissible evidence, regardless of their ultimate admissibility at trial. Parties and witnesses must respond to requests for discoverable material. The physician’s involvement typically intensifies during this stage, requiring time and effort to provide answers to written discovery and gather relevant documents. Preparing for a deposition demands focused attention. Beforehand, the physician meets with their lawyer to thoroughly prepare. Depositions could take several hours and require significant concentration.

Discovery encompasses various forms:

• Interrogatories: Written questions served by one party or another.

• Requests for disclosure: Statutory requests for information that must be produced without objection, covering basic lawsuit information, including potential witnesses, experts, party contentions, damages, and health care providers involved in the plaintiff’s treatment.

• Requests for production: Requests for written documentation.

• Requests for admissions: Require the served party to “admit” or “deny” certain facts and contentions. A timely response is crucial to avoid deemed admissions.

• Expert reports: Contain the expert’s opinion and basis for the opinion, exchanged between parties.

• Depositions: Sworn testimony sessions, usually conducted after completing written discovery, initially deposing parties, followed by experts.

To maintain a medical malpractice action, a plaintiff must present a qualified expert witness to testify that the physician was negligent and that the physician’s actions proximately caused the plaintiff’s injuries. Negligence is defined as failing to use ordinary care, akin to what a prudent physician would have done under similar circumstances. Proximate cause is described as producing an event foreseeable by the carefully exercising physician. A properly qualified expert must be a practicing physician at the time of testimony or during the care and treatment basis of the claim, or qualified through training or experience. Factors considered in determining the qualification of an expert witness include board certification, substantial training or experience relevant to the claim, and current practice in medicine pertinent to the claim. The physician’s attorney may challenge an expert’s qualifications and their ability to establish negligence and proximate cause legally. If the plaintiff’s expert prevails, the defendant physician must present a qualified expert to counter the plaintiff’s expert’s testimony, often using outside experts or testifying personally.

Medical malpractice claims have a statute of limitations, within which a plaintiff must file a lawsuit that varies by state. Generally, this period starts from the date of the treatment in question. However, three situations may adjust this rule:

• Notice letter: Extends the statute by a specified period.

• Minor plaintiff: The statute of limitations does not start until the minor plaintiff turns 18, allowing viable claims until age 20. Claims for reimbursement of medical bills rendered while under 18 must be filed by parents within 2 years of the treatment date.

• Discovery rule: If unable to discover the basis of the lawsuit within 2 years of treatment, the plaintiff can file suit within a reasonable time after discovering the basis.

Typically occurring during discovery and before trial, mediation aims to settle the case. The court may order mediation, or parties may agree to it voluntarily. Mediation involves an independent third-party facilitating settlement without adjudicatory power. The mediator persuades parties to reach a resolution without imposing settlements. Information disclosed during mediation remains inadmissible at trial unless otherwise admissible. If unresolved, the mediator reports nonresolution to the court.

Common methods of resolving lawsuits before trial include:

• Motion for summary judgment: A dispositive motion constituting a judgment on the merits, typically filed to assert limitations defenses or test the plaintiff’s capacity to produce a qualified expert establishing negligence and proximate cause.

• Motion to dismiss: Filed when a plaintiff fails to produce a curriculum vitae and expert report establishing negligence and proximate cause within the statutory 180-day period. Courts may grant plaintiffs additional compliance time but ultimately require expert reports to survive dismissal.

• Voluntary nonsuit: Occasionally, a plaintiff may drop claims against the physician, commonly in multiparty cases. Though not a merits dismissal, dismissed claims can be refiled if within the limitations period.

• Settlement: Settling parties typically execute compromise settlement agreements outlining terms. Such agreements may include language stating no admission of negligence and settlement solely to avoid the time and harassment of litigation. An agreed motion for nonsuit is filed in court, with the judge issuing an order of nonsuit formally disposing of the case.

Phase 3: Trial⁸

Trial of a lawsuit is an extremely demanding undertaking, not only on the part of the lawyer, but also on the part of the physician. It can be emotionally, physically, and psychologically exhausting, often requiring the physician’s complete and undivided attention to the exclusion of all else. It may take several years after a lawsuit is filed before it actually goes to trial. A lawsuit can typically take from 1 ½ to 3 years. Preparing for trial can be frustrating because a trial date often cannot be established. Generally, the parties to a lawsuit will not know for certain whether they are going to trial until the day of trial, and “special settings,” which attempt to set a firm trial date in advance, can also fail. Nonetheless, when a trial on a given date is possible but uncertain, both the physician and the lawyer must adequately prepare.

Before trial, the physician must prepare to provide trial testimony, usually by extensively reviewing the medical records, the physician’s own deposition, and the depositions of other experts and any plaintiffs. Before trial, the physician will meet with counsel to prepare for direct testimony and anticipated cross-examination questions.

RELATIONSHIP BETWEEN ADVERSE EVENTS AND MEDICAL MALPRACTICE LITIGATION

Getting sued for medical malpractice does not necessarily mean that a clinical error occurred. Clinical error was defined as the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim, according to the Institutes of Medicine Report “To Err Is Human: Building a Safer Health System.”⁹ In the Harvard Medical Practice which analyzed the relationship between clinical error and malpractice claims, it concluded that most malpractice claims were not associated with adverse events due to clinical error. A total of 280 patients experienced adverse events, but only 8 filed a medical malpractice claim. The overall rate of negligence claims per discharge was 0.13%.¹⁰ This phenomenon was also found in the United Kingdom, where it was estimated that 90,000 adverse events occurred annually resulting in 13,500 patient deaths. However, there were only ∼7000 claims and 2000 payments associated with these adverse events.¹¹

Other studies have explored the relationship between malpractice claims, clinical errors, and compensation. In a cross-sectional study of malpractice claims of 33,000 physicians, 37% of claims did not involve errors. The compensation for claims involving no errors (72%) was lower than those that did involve errors. When one looked at the association between compensation and the merit of the case, noncompensation was more common for claims associated with errors (16%) while compensation occurred less frequently when there was no error (10%).¹² In a study of New York litigation, neither clinical errors nor adverse outcomes were associated with filing a claim or getting compensation.¹³

THE IMPACT OF A LAWSUIT

Professional Impact

The National Practitioner Databank (NPDB) was established in 1986 by Congress to prevent the movement of clinicians from state to state without discovery or disclosing previous damaging performance. The goal was to enhance the quality of care of patients while preventing abuse and fraud. Several different types of entities are required to report about a multitude of negative professional actions taken against clinicians and organizations, as well as periodically query the NPDB. Title IV of the Health Care Quality Improvement Act of 1986 mandates that medical malpractice payments made on behalf of clinicians must be reported to the NPDB. Hospitals are required to query the NPDB every time a clinician joins the medical staff and during their 2-year review for clinical privileges.

Who else has access to the information in the NPDB? The information in the NPDB is not open to the public. Clinicians can submit a query to determine if they are in the NPDB by submitting a request to the NPDB website at https://www.npdb.hrsa.gov/ext/selfquery/SQHome.jsp. Medical malpractice payers are prohibited from querying the NPDB.

Personal Impact

Being sued can have a major impact on oneself as well as your immediate social circle. Dealing with the process is time-consuming. One will have to plan with your job to be present during the critical phase of the process of defending yourself. In addition, you will have to dedicate time to reviewing files, literature, and important documents so you can adequately support your position. Frequently, physicians who are being sued will alter their practice by avoiding doing certain procedures which are considered high-risk, scaling back their work duties or utilizing defensive medicine.

There may be feelings of stress, anger, insecurity, or bewilderment. It is appropriate to seek professional counseling from religious or medical specialists. Avoid speaking with colleagues about the details of the case since it may be discoverable in some states. Discussions with one’s spouse are protected from discovery in most states.

Ways to avoid being sued^14–16:

• Use of risk management programs

  • evaluation and analysis of complaints and claims,

  • targeted medico-legal education, and

  • implementation of patient safety measures.

• Keeping up with the current literature

  • Anesthesia Patient Safety Foundation provides updates on how to enhance patient safety.

  • Anesthesia Quality Institute Closed Claims analyzes anesthesia-specific trends in medical liability cases.

• Communicating with patients and family members.

• Giving realistic expectations.

• Providing treatment alternatives and risks.

• Being familiar with state-specific Apology Laws to know what is discoverable.

• Documenting in a clear, meticulous, and timely manner.

TORT LAW REFORM - STATE

Medical malpractice claims are made to recover damages for negligence. There are 3 types of recoverable damages: economic, noneconomic, and punitive.¹⁷ Economic damages include tangible losses due to medical expenses or the inability to earn income. Noneconomic damages comprise of intangible losses including but not limited to emotional loss (pain and suffering), disability, disfigurement, loss of society or loss of consortium.¹⁸ Punitive damages are distributed when there are instances of gross negligence and are rarely awarded in medical malpractice cases.

Since the 1970s, with the introduction of the Medical Injury Compensation Reform Act in California, leading to a cap on noneconomic damages, there has been a gradual adoption of tort reform in the United States. Tort reform has been instituted to counter the rising medical malpractice liability environment. Primarily, tort reform occurs at the state level. There are various forms of tort reform such as caps on noneconomic, economic or punitive damages, joint and several liability, an affidavit of merit, and collateral source rule reform.^19,20

Most noteworthy caps on compensation cover economic as well as noneconomic damages. There are 6 states with caps on both economic and noneconomic damages in 2025.²¹ There are 23 states with noneconomic damages. Interestingly, there are 9 states where caps were initially passed and then they were deemed to be unconstitutional and never repassed by the state legislature. Twenty-two states and the District of Columbia never had a cap.²²

The impact of caps had various effects. In Texas, a cap of $250,000 was placed on noneconomic damages in 2003 for physicians and other individual health care providers. Within 7 years, the number of medical malpractice claims that resulted in payments over $25,000 fell by 58%. Several studies noted that there was no change in safety indicators such as mortality before and after the cap reform was instituted.^20,21 One study found that there was a 31% decrease in payouts per physician after the use of cap reform. An analysis of the Agency of Quality and Healthcare patient safety indicators (PSI) noted an average 15% postreform increase. However, postoperative complications like postoperative respiratory failure (PS11) and postoperative sepsis (PS13) decreased.¹⁷

TORT LAW REFORM - FEDERAL²¹

The Family Health Care Accessibility Act of 2016 provides Federal Tort Claims Act (FTCA) medical malpractice liability coverage to all qualified health care professionals who volunteer at community health centers by deeming them employees of the Public Health Service. FTCA allows the US government to act as the defendant as opposed to the health care professional.

The Sports Medicine Licensure Clarity Act of 2016 allows athletic trainers to utilize their liability insurance when they provide care to sports teams while traveling.

The Medicare Access and CHIP Reauthorization Act of 2015 included the incorporates the Standard of Care Protection Act, which prohibits federal quality program standards and performance metrics from being used as a “standard of care” in medical liability actions.

SOCIAL MEDIA AND MEDICAL LIABILITY

Social media is a powerful tool for physician and patient education. It has grown exponentially and is firmly established. Given the tangled web of content online, patients and the general public have a strong desire for physician-led accurate information online.²³ Physicians often are involved personally and professionally on social media sites such as Facebook, X, TikTok, and Instagram to name a few. There is significant liability to be aware of, and health care providers need to understand the risks as well as how to manage them appropriately.

The most frequent risk encountered is posting patient information that violates the Health Insurance Portability and Accountability Act (HIPAA) rules. Information that involves personal identifiers should absolutely be avoided.²⁴ This restriction expands to include information about medical care that can lead one to deduce which patient is being discussed, such as the date of a surgery or the surgeon operating on that patient. Screenshots and photos should not include patient information in any part of the image.

In addition, during patient care, using social media is particularly concerning if there is an adverse event. When on social media, these applications create metadata which tracks the user’s login time and activity on the social media platform. Posts may be taken down by the end user, but there is still some permanency in that it can be found online by lawyers, hackers and sleuths.^25,26 When there is a post near an adverse event, it shows an inattention to the patient but also poor judgment. These are the most common cases that result in liability. As with most medical liability laws, they vary by state, so the exact laws depend on one’s location.

Patients and physicians rely and depend on general health care information online, and there are best practices to follow. First, the posted information should be about general health care information that is as accurate as possible and not about specific patients.²⁷ It is advisable to create a fictional patient and to acknowledge that to avoid any misunderstandings. Carefully consider the time that you are posting something and postpone it if you are contributing to direct patient care.²⁸ Furthermore, one needs to discuss conflicts of interest, particularly when posting about medical devices, medications or services where one received compensation. In fact, the Federal Trade Commission requires disclosure of a conflict when someone is receiving compensation from the device company. It is also advisable to avoid negative posts about one’s institution, as this often goes against hospital policy and is perceived as a lack of professionalism.²⁹ Avoid giving the impression that you represent your institution unless authorized to do so. Always use a professional tone of voice and seek assistance if there is any hesitation or concern about posting information.^25,26

Challenging circumstances can occur that are worth mentioning. Reposting information about patients from another person’s text or social media post creates a liability for the physician reposting it. Surprisingly, patients may post about doctors, including their names, as doctors are not anonymous. However, the information about the physician cannot be false, or there is a risk of defamation.

Moreover, when a patient records a conversation with a physician and reposts it online, it is a complicated situation. Different states have different laws regarding consent for recording. Regardless of legality, recording appears to be harmful toward the physician-patient relationship, so it is generally not a good practice without permission from the physician.

Social media is an important and influential part of health information for patients and the public. Physicians and health care providers are encouraged to freely participate. They need to understand the risks and best practices to avoid liability.

IMPACT IN ANESTHESIOLOGY

The specialty of anesthesiology has weathered the litigation storm well. We have moved from being one of the high liability specialties to being a pillar of patient safety. This is due to a multitude of reasons, such as the creation of standards and enhanced patient safety education. According to the American Medical Association Benchmark Survey,³⁰ when compared with all physicians, anesthesiologists are less likely to be sued within the past year (2% vs.1.2%) or sued during their career (32.1% vs.28.6%). The rate of the number of claims in a career to date per 100 physicians is 45 in anesthesiology, as opposed to 63 when looking at all physicians. Anesthesiologists under the age of 55 years old (16.3%) were less likely to be sued than those 55 years of age and older (41.5%).

CONCLUSION

Medical malpractice is a constant factor in the lives of clinicians. However, with proper knowledge of the intricacies of tort law, one can feel empowered to face the uncertain waters of the medical legal system. In fact, one can attempt to mitigate the chance of being sued by being aware of safeguards.