Negligence

CHAPTER 15 Negligence

Curtis E. Harris, M.S., M.D., J.D., F.C.L.M.

The purpose of this chapter is to present an overview of the types of medical negligence, which include: ordinary negligence, per se (statutory) or judicially imposed (case law) negligence, gross negligence, and criminal negligence. These represent various degrees of carelessness, divided by the probability of harm and the imputed mindset of the person causing that harm.

“Negligence” is carelessness. Ordinary human behavior is rife with careless actions, most of which cause no harm, or may do so little harm as to be easily forgiven. We have all received (and dialed) a “wrong number” phone call, and excused the person who dialed it without thinking twice. It is only when the caller dials again that we become upset, or when it becomes obvious the intrusion is somehow intentional that we take action to block the call. Ordinarily, as long as a behavior is not harmful or annoying, and as long as the person who was careless apologizes, negligent acts are forgiven and forgotten as part of our normal social structure, hardly causing a second thought.

To err is human.¹ Medical practice is an error-prone human endeavor.² As admirable as the oft-stated goal of eliminating all medical error might be, to avoid all error in medicine would necessarily involve eliminating both the patient and the physician from the encounter. Arguably, medical practice today is safer than at any time in our history, despite the increased risk of harm associated with increased technology and disease intervention. However, as medical practice has become safer, so has the public expectation that relies on that safety, often racing ahead of what is possible to achieve.

A “bad outcome” is first treated as a possible or probable mistake, subject to proof otherwise, even in the mind of the treating physician. Malpractice case law is formed by the tension between acts that are possible causes of medical misadventures and acts that are probable causes of medical misadventures. As it becomes more certain that any given act is the actual cause of an injury, liability for that act increases dramatically.

It is important to note that the most extreme form of medical malpractice, criminal negligence, does not involve a premeditated intention to harm another person. Premeditation to harm is an essential element of a criminal act that defines attempted or actual murder, not negligence. Rarely, an ordinary part of medical practice can become a charge of homicide (or murder) if a motive toward profit or a desire to harm a patient can be imputed to the physician, but such a motive must be beyond extreme carelessness. Such acts are unusual in medicine, as the following case describes.

case presentation

The case presented is based in part on an actual case, and is in part fictionalized. It raises several important issues concerning negligence, which are discussed in detail after the case presentation.

Dr. Bob was a Board Certified obstetrician/gynecologist, in practice for over 20 years. (His real name is Robert E. Lee; but his many grateful patients, including the more than 1800 adult children he had delivered in those years, just called him “Dr. Bob.”) Dr. Bob held an appointment as an Adjunct Professor at the State College of Medicine, where he had trained and was on staff before entering private practice. He has been the Chairman of the Department of Surgery at his local hospital, Valley View General, where he was also the Chief of Staff two years ago. Due to his long service and generous donations, Dr. Bob served on the hospital’s Board of Directors.

Several years ago, Dr. Bob grew weary of the late hours involved in obstetrics, never liked gynecology, and wondered what to do. On a whim, he took a two-week hands-on course in breast augmentation procedures, and a new world opened for him. His popularity and reputation paid off well. Until recently, he owned a free-standing surgical office, where he performed breast augmentation, liposuction, and “tummy-tucks” from dawn to dusk.

One problem quickly became evident, however. At least to the Valley View’s ER staff, Dr. Bob was less than competent. His patients often presented to the ER within several hours after surgery with severe bleeding and early infectious complications. In addition, at least once a month, hospital admission was necessary, usually to the on-call surgeon, since Dr. Bob practiced alone and was always out of town on the weekends. A recent death in the ER from bleeding after a combined “tummy-tuck” and liposuction done late one Friday afternoon drew the attention of the local newspaper. After the case was reviewed by the hospital’s Peer Review Committee, and no negligence found, the local newspaper forgot about the death. The Committee’s sole recommendation, made in confidence, was to ask Dr. Bob to stay in town more often to avoid turning over care to a surgeon the patient has never met.

Dr. Bob was a widower, until he married for the second time last year. He did not remarry for several years because he was devastated by the death of his first wife. She died of bleeding complications in his office after one of his first breast augmentation/liposuction attempts failed. An investigation by the State Medical Board found him guilty of an ethical violation of state law because he had operated on his wife, fined him $2500, and told him to take a course in medical ethics. Unfortunately for his current wife, he did not take the course.

The District Attorney has charged Dr. Bob with murder following the death of his second wife, Susan. She died in his office during a procedure identical to that of his first wife. When interviewed by the local television station, the Medical Examiner described the body as “having been filleted from side-to-side across the abdomen and breast. Mrs. Lee died of massive blood loss consistent with her unattended injuries. I have never seen a reputable surgeon make such incisions.”

On investigation, three facts stood out to the District Attorney. First, Dr. Bob employed untrained personnel to assist him in surgery and provide general anesthesia. One was a college student, the other a senior in high school. Second, no attempt was made to call 911 before Susan died. Only after the death occurred did anyone notify emergency services. Further, the surgical records documented that Susan was severely hypotensive throughout the last half of a five-hour procedure, without any effort made to correct the problem. Finally, the newly-married couple had fought bitterly over the months before her death. Dr. Bob had discovered that his wife had continued to see an old boyfriend after the marriage, and broke off the relationship only after extensive counseling. Part of the agreement to break off the old relationship had been Dr. Bob’s offer to do the surgery that led to his wife’s death. Other facts of the investigation confirmed Dr. Bob’s gross incompetence, but were not part of the murder charge.

At trial, the defense team successfully convinced the jury that Dr. Bob, as a surgeon, was grossly incompetent, and that he may have violated medical-ethical standards by doing the surgery on his wife, but that Dr. Bob did not intend to kill Susan. The jury found Dr. Bob guilty of involuntary manslaughter, fined him one dollar, and recommended 6 months’ probation. After all of his appeals were complete, the Medical Licensure Board revoked his license. Susan’s family sued Dr. Bob through her estate for ordinary and gross negligence, obtaining a judgment of $5 million, including punitive damages. His malpractice carrier refused liability based on the criminal conviction. Today, Dr. Bob practices as a volunteer physician in another state.

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Tags: The Medical Malpractice Survival Handbook

Mar 25, 2017 | Posted by admin in GENERAL & FAMILY MEDICINE | Comments Off

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