Medical Malpractice
Prologue: Medical Malpractice
Healthcare providers may commit torts that are outside of the reasonable person standard because the individual acts that constitute medical torts are committed by professionals. It can arise in three instances:
1. Negligence by the healthcare provider due to deviation from the standard of care;
2. Failure to obtain informed consent; and
3. Battery.
Negligence is conduct which deviates from a standard of care required by law for the protection of persons from harm.
Negligence may result from the performance of an act or the failure to act.
To recover for an injury caused by medical malpractice, a plaintiff must demonstrate:
1. The doctor owed a duty to the plaintiff,
2. he breached that duty,
3. the breach of duty was the cause of the plaintiff’s injury,
4. and the injury caused damages.
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. Largey v. Rothman.
1. Duty of Care
The determination of whether a defendant was negligent requires a comparison of the defendant’s acts against a standard of care.
A person who is engaged in the general practice of medicine represents that he or she will have and employ knowledge and skill normally possessed and used by the average physician practicing his or her profession as a general practitioner.
A person who is a specialist in a field of medicine represents that they will have an employ not merely the knowledge and skill of a general practitioner, but have and will employ the knowledge and skill normally possessed by the average specialist in their field.
The standard of care does not only represent what is “customary” or “accepted” method of practice, it also embodies reasonability. This concept was discussed in Elkerson v. Blood Bank, where the appellate court held that if the industry is allowed to establish its own custom or practice, then no matter how unreasonable such standard might be by ordinary judgment, all industries would be insulated from liability so long as they conformed to the established standard.
The law recognizes that the practice of medicine is not an exact science. Therefore, the practice of medic
urse pursued. Aiello.
To this effect, only Hobson Choice situations permit a doctor to receive an exercise of judgment claim, otherwise doctors could avoid liability for their ordinary negligence. Judges must not only determine when an “exercise of judgment” instruction is permitted, but where it is permitted, he must also separate out those aspects of the medical care that involved the charge and those that do not. Velasquez.
In order to use judgment as a defense, the doctor would have to be able to show that the accepted standard of care allows for the treatment he has chosen
[1] The immunity granted pursuant to this section shall not apply to acts or omissions constituting gross negligence, recklessness or willful misconduct. It also does not apply to a health care professional if a provider-patient relationship existed before the emergency, or if consideration in any form is provided to the health care professional for the service rendered.
