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Proving a Medical Malpractice Case I – Proving Negligence (Part II)

Proving a Medical Malpractice Case I – Proving Negligence (Part II)
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Dr. MedLaw

Dr. Medlaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.

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Dr. MedLaw (click to view)

Dr. MedLaw

Dr. Medlaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.

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[Editor’s note: this is the second installment of “Proving a Medical Malpractice Case I – Proving Negligence” by our blogger, Dr. Medlaw. You can read the first part here.]

The one issue that never matters in a Standard of Care analysis is the individuality of patients because the entire purpose of medical care is to apply one’s overall knowledge and skill and  available resources to what is suitable for the specific patient.

This brings us to how an expert establishes the Standard of Care for a lay jury.

The guidelines from professional boards and societies will undoubtedly be cited.  The defense will note the likely disclaimer that these are not meant as definitive statements of the Standard of Care and will probably ask the judge to instruct the jury as such but these are still able to be taken as some evidence of  what the Standard of Care constitutes. The expert will also use texts, citations from the literature and references to their own experience to define what they hold to be the Standard of Care.  These presentations are, of course, subject to challenge on cross-examination.

The expert’s testimony should also address the more intangible aspect of medicine as well.  Courts expect that medicine, as a discipline grounded in tested science, will have adequately formalized standards for practice but that “regions of art” will also be identifiable as distinct from that. It is the role of the expert to explain how the art in the practice, such as best medical judgment in a given circumstance, impacted on the case in a way that flat statistics cannot.

So, now we have looked at the usual setting in which plaintiff and defense experts define the medical issues for the jury, referring to events from the medical record and comparing those to standards of practice to either support or rebut the contention that there was a deviation from such. However, there are two other settings in which medical negligence is demonstrated differently, in which the plaintiff does not have to prove the Standard of Care.

The first is res ipsa loquitur, Latin for “the thing speaks for itself”.

You might think that it would be commonly invoked, with every plaintiff’s attorney summing up with “And so you see, ladies and gentlemen of the jury, this case speaks for itself!” However, it is actually a very limited doctrine. It covers only those situations in which the actual negligent act cannot be proven but it is clear that there was no other explanation for the eventual harm than negligence because what happened is not otherwise a possible outcome of the event.


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To understand that most clearly, let’s look at the facts of the first case in which the doctrine was actually applied: A barrel had rolled out of a second story of a warehouse and had severely injured a man who was just walking by on the street below. No one from the warehouse offered any explanation of how this had happened and, of course, the plaintiff had no idea of what might have gone on inside the warehouse. The defense therefore demanded that the case be dismissed since no one could account for exactly how the barrel had come to fall. The judge, however, found that barrels do not just normally roll out of second stories unless there is negligence in maintaining those barrels and so the event literally “spoke for itself” that there had to have been some type of negligence. The judge therefore ruled that the plaintiff did not, under those circumstances, have to prove what the specific negligence was.

Applying this to medical scenarios, the doctrine can only be invoked when:

  • The plaintiff suffers an injury that is not an expected complication of the type of medical care that he or she underwent.
  • The injury does not normally occur unless someone has been negligent.
  • The defendant was in complete control of the situation and the plaintiff could not possibly have either contributed to the causative event or prevented it.

An example is a patient who has abdominal surgery and wakes up after surgery with a painful arm and is found to have a dislocated shoulder.  It might have occurred during the surgery due to positioning for the procedure or for a portable X-ray that was done intra-operatively or during the several phases of transport between the OR, the recovery room and the patient’s room.  There are many people from different departments who could have been involved but there is nothing in the record to indicate how it occurred – in fact, it was not even recognized until the patient woke up and complained of pain.  The patient was, of course, unconscious through the entire matter and can contribute nothing as to how the event happened. What is known, however, is that a dislocated shoulder is not an expected complication of the surgery the patient had, unconscious patients’ shoulders do not normally get dislocated if those patients are moved and positioned properly, and the patient was absolutely unable to exert any control over his situation. Res ipsa loquitur can therefore apply.

Some other situations in which the doctrine can be used are leaving in a foreign body after surgery or amputating the wrong limb.

In all of these situations there is no need to prove a Standard of Care because the event being sued upon is one that can never be within such – it is a departure from good and accepted practice by definition. All that must be shown is that the negligence caused the injury.

The other more unusual situation is negligence per se, which is based on the defendant having violated a law that itself defines the appropriate Standard of Care.

For a court to accept a negligence per se claim, the plaintiff must prove that:

  • A law was violated.
  • The law that was violated was intended to prevent the type of injury that the plaintiff suffered.
  • The plaintiff was in the class of people intended to be protected by the law.

With regard to the first element, the defendant does not have been convicted or administratively sanctioned for breaking the law.  If, however, the defendant has pled guilty that can be used as irrefutable proof of having broken the law. A nolo contendere plea cannot be used in that regard, however, because it is not an admission of guilt, although it can be admitted as some evidence of the law having been broken that would need to be additionally buttressed.

In the medical setting, these claims apply to laws set up specifically to protect patients. EMTALA is therefore a setting where a negligence per se claim can be applied because it pertains to the care that is mandated to be provided to patients. By contrast, the negligence per se doctrine would not apply to a case where a patient is injured by a doctor who is practicing without a currently valid license because he did not pay the latest renewal fee because this fee payment is to fund administrative work, not to protect patients. In that setting, the state medical board could sanction the doctor but the patient would have to sue in a standard medical malpractice action and prove both the Standard of Care and a deviation from it in order to recover for their injury.

In summary: To prevail in a medical malpractice case the plaintiff must prove negligence either as a deviation from the Standard of Care, a res ipsa loquitur event or negligence per se.

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