A patient fell off my examining table. She had felt a bit woozy when I was removing her sutures, so I stopped to give her a breather and stepped out to take a phone call. When I came back, she was on the floor, shaken and upset but not hurt other than a large bruise. She is suing me pro se; I guess she was not able to get a lawyer because she did not have serious damages. She is claiming that I was negligent for leaving her alone. In my state, malpractice claims first require a doctor to attest that the case has merit. My patient did not do this. Can I get the case dismissed?
Not every negligence case against a doctor, or based on an event in a doctor’s office, is a malpractice action. Malpractice is professional negligence, a tort that can only occur in the setting of the practice of a profession, in this case medicine. Doctors can, however, also be subject to claims of ordinary negligence.
Claims of ordinary negligence raise issues within the common knowledge and experience of anyone who might sit on a jury or of any judge who might hear the case in a bench trial. Claims of medical negligence raise questions involving medical judgment beyond the common knowledge and experience of non-physicians.
She is probably suing for ordinary negligence, precisely because it is an easier claim to bring. She would say it is within anyone’s knowledge that a woozy person on an elevated table without side guards is at risk of falling and should not be left alone.
However, what would be ordinary negligence if it happened in another setting will, if it is part and parcel of the rendering of medical diagnosis or treatment, be legally viewed under the scope of malpractice, because the professional obligation to act non-negligently extends to all aspects of the care, including a safe physical setting. The test is whether the negligent act occurred in the rendering of services for which the healthcare provider is licensed. This is separate from the duty to the patient as just a visitor to the office who is owed a duty of care against dangerous conditions on the premises the doctor controls, just as is everyone else.
In your case, the patient was already in the midst of her appointment and was woozy because you were removing her sutures, bringing it fully into the ambit of medical care, which would then include maintaining her safety on the high table. You can, therefore, move to have the case dismissed. She would have to bring a new case for malpractice—or, since you actually were negligent in leaving her alone while woozy on the table but she was not seriously harmed, you can offer a reasonable settlement. This article was written by Dr. Medlaw, a physician and medical malpractice attorney. It originally appeared on SERMO, which retains all rights to it.
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