Duty

Duty, the first element of the negligence theory of liability, is created by the physician–patient relationship. The “life” of medical practice, both generically and specifically, is generally a contract, referred to as the physician–patient relationship. Both medically and legally, it is considered a “sacred” or fiduciary relationship. The physician–patient contract may be entered into with the physician by a third party on behalf of the patient, as in the case of a managed care organization.

Duty requires that a physician possess and bring to bear on the patient’s behalf that degree of knowledge, skill, and care that would be exercised by a reasonable and prudent physician under similar circumstances. The physician owes the patient a duty to act in accordance with the specific norms or standards established by the profession, commonly referred to as standards of care, to protect the patient against unreasonable risk. The defendant physician may fail to exercise the required skill, care, or diligence by either commission or omission (i.e., by doing something that should not have been done or by failing to do something that should have been done). It may not matter that the physician has performed at his or her full potential and in complete good faith. Instead the physician must have conformed to the standard of a “prudent physician” under similar circumstances.

There is no clear definition of the duty of a particular physician in a particular case. Because most medical malpractice cases are highly technical, witnesses with special medical qualifications must provide the judge or jury with the knowledge necessary to render a fair and just verdict. As a result, in nearly all cases the standard of medical care of a “prudent physician” must be determined based on expert medical testimony. In the case of a specialist the standard of care by which the defendant is judged is the care and skill commonly possessed and exercised by similar specialists under similar circumstances. The specialty standard of care may be higher than that required of general practitioners.

Although courts recognize that medical facts usually are not common knowledge and therefore require expert testimony, professional societies do not necessarily set the standard of care. The standard of care is an objective standard against which the conduct of a physician sued for malpractice may be measured, and it therefore does not depend on any individual physician’s knowledge. In attempting to fix a standard by which the jury or the trier of fact may determine whether a physician has properly performed the requisite duty toward the patient, expert medical testimony from witnesses for both the prosecution and the defense is required. The jury or the trier of fact ultimately determines the standard of care, after listening to the testimony of all medical experts.

Breach of Duty

Breach of duty, the second element of medical negligence, must be proved by the plaintiff. The plaintiff alleges that the physician failed to act in accordance with the applicable standard of care and did not comply with, and hence breached, the requisite duty. The applicable standard of care must be proved before the plaintiff can prove that the physician breached that duty. In most cases, expert witnesses for the prosecution and the defense address the question of breach of duty while testifying as to the standard of care owed.

There are exceptions to this rule. Expert testimony may not be required if a plaintiff presents evidence showing that the defendant physician’s substandard care is so obvious as to be within the comprehension of a lay person. Another exception is the judicially imposed standard of care. Generally, courts rely on medically established standards of care to determine a health care provider’s duty and breach of that duty. Some courts have required a “preferred” rather than the usual, ordinary standard of care. To that end, the courts have rejected the testimony of medical experts as to the accepted medical standard of care when they thought it inappropriate, and decreed their own, i.e., judge-made, standard of medical care.

Causation

Causation, the third element, must also be proved by the plaintiff alleging medical negligence. The plaintiff must show that a reasonably close and “causal connection” exists between the negligent act or omission and the resulting injury. In legal terms this relationship is commonly referred to as legal cause or proximate cause. The concept of causation differs markedly from that of medical etiology in that it refers to a single causative factor and not necessarily the major cause or even the most immediate cause of the injury, as is the case with medical causation or etiology.

Although causation may seem to be an easy element for plaintiffs to prove, it is frequently the most difficult and elusive concept for the jury to understand because of the many complex issues. Legal causation consists of two factual issues—causation in fact and foreseeability.

Causation in fact may be stated as follows: An event A is the cause of another event B. If event B would not have occurred but for event A (known as the “but for” test), causation exists. The “but for” test is easily passed in some cases but not in others. Consider the following contrasting examples. The patient with an intestinal perforation resulting from a surgeon’s failure to remove an instrument from the abdominal cavity may suffer subsequent abdominal abscess, surgery, or death. But for the retained instrument, such a complication would not have occurred. In contrast, a physician’s delay in the diagnosis of a highly aggressive malignant neoplasm might not necessarily affect the patient’s chance of survival.

Foreseeability is the second causation issue. A patient’s injuries and other damages must be the foreseeable result of a defendant physician’s substandard practice. Generally the patient must prove only that his or her injuries were of a type that would have been foreseen by a reasonable physician as a likely result of the breach of the medical standard of care.

The law of causation varies widely from jurisdiction to jurisdiction, and its proof is currently in flux. In Daubert v. Merrell Dow Pharmaceuticals,¹ the U.S. Supreme Court addressed the admissibility of scientific evidence in a case involving expert testimony concerning causation. This decision, which is followed in most jurisdictions, allows judges great discretion in deciding what scientific evidence is or is not admissible, especially as applied to the causation element.

Damages

Proof of damages, the fourth element of the medical negligence suit, encompasses the actual loss or damage to the interests of the patient caused by the physician’s breach of the standard of care.

There can be no recovery of damages if the patient is not harmed. The exception to this rule is “nominal damages,” where a token sum, economically worthless, is awarded a plaintiff who has had his or her honesty, integrity, or virtue challenged and is vindicated by the satisfaction of having his or her claim honored. Although rare, the significance of an award of nominal damages is that it may serve as a prerequisite to the award of punitive damages.

The purpose of awarding damages in a tort action is to ensure that the person who is harmed is made “whole” again or returned to the position or condition that existed before the tort of negligence. Because it is generally impossible to alleviate the effects of an injury resulting from medical malpractice, public policy demands redress through the award of monetary compensation to the plaintiff. The legal fiction is that money makes the damaged patient whole.

Damages may encompass compensation for a wide range of financial, physical, or emotional injury to the plaintiff patient. The law has recognized certain categories of damages, but categorization is often imprecise and inconsistent because some of these categories overlap and are not strictly adhered to by courts of all jurisdictions.

Compensatory damages are awarded to compensate the patient for losses. There are two types of compensatory damages—special and general. General damages are awarded for noneconomic losses, including pain and suffering, mental anguish, grief, and other related emotional complaints without any reference to the patient’s specific physical injuries. Special damages are those that are the actual but not necessarily the inevitable result of the injury caused by the defendant and that follow the injury as foreseeable and natural consequences. Typical items of special damages that are compensated by a monetary judgment include past and future medical, surgical, hospital, and other health-care-related costs; past and future loss of income; funeral expenses in a case involving death; and unusual physical or medical consequences of the alleged injury, such as aggravation of a preexisting condition.

If a wrong was aggravated by special circumstances, punitive or exemplary damages, in addition to the injured patient’s actual losses, may be awarded. Punitive damages, which are rarely awarded in medical negligence cases, are intended to make an example of the defendant physician or to punish his or her egregious behavior. Such damages generally are awarded when the defendant’s conduct has been intentional, grossly negligent, malicious, violent, fraudulent, or with reckless disregard for the consequences of his or her conduct.