Any discussion with doctors about avoiding liability for malpractice is hampered from the start because “negligence” is a very charged term. It conjures up images of a slipshod and blundering individual and so doctors understandably immediately become resistant. They see it as insulting, and frankly ignorant of medical practice, to apply it to errors that may be made inadvertently over the course of complex medical care.
The first issue is therefore to understand that the word is not being used in a colloquial sense—it is a “term of art” with a specific legal meaning: a failure to meet an accepted standard of conduct. There is no moral or ethical implication to it.
A negligent doctor may, in fact, have acted in a very considered fashion, but have still failed, by an act or omission, to meet a basic requirement in the care of their patient. By contrast, actually being thoughtless or reckless, showing a disregard for the well-being of the patient, would be gross negligence, which is very rare in the malpractice setting.
Put simply, a doctor can intend to do well by their patient and actually attempt to do so, but still be negligent under a superseding requirement.
The application of a general requirement should not, however, be understood as separating the analysis of a case of possible negligence from the individual patient. In fact, the obligation to avoid negligence is best understood as the fiduciary duty of care that a doctor owes to their patient. This means that it will always be a one-to-one matter.
This is also consistent with the fact that the assessment of whether there has been negligence is going to be situational. As a general benchmark, every doctor is expected to possess and use the knowledge and skill of comparable practitioners, but in determining if a particular act or omission was negligent the circumstances that it occurred in, including whether there was an emergency, the extent to which the patient complied, and the resources available to the doctor, will be taken into account.
Finally, the individuality of the analysis means that even though the required standard is one that is applied generally as accepted practice that each patient is personally entitled to appropriate diagnosis and treatment on the terms of their own condition. That the error rate in the care cannot be reduced to zero across a population does not change whether an error in a specific case is negligent.
Negligence must also be unintentional. This goes to the most common question that doctors have as to why it is fair to hold them responsible for what is, by definition, a mistake made while trying to give proper care. As we noted above, though, negligence only looks to whether applicable requirements in the care were met so a lack of intention is irrelevant to whether it occurred. Actual intention to do harm would take the wrongful conduct completely out of the scope of negligence and into the realm of torts (or even actual crimes) such as assault, battery, and fraud.
What then becomes clear is that negligence and the standard of care mutually define each other. A finding of negligence is arrived at by comparing a defendant doctor’s actual conduct to what will usually be referred to during the trial as “good and accepted medical practice,” and meeting the standard of care so as to be non-negligent means possessing the level of skill and knowledge that equivalent practitioners do and using that skill and knowledge as is considered appropriate in the medical community. They are literally two sides of the same coin.
But we also live in a real world outside of law books, and the analysis of whether there was negligence in a particular case is not going to be decided in a theoretical fishbowl.
The simple reality is that people who are pleased with their medical outcomes do not sue, and the poor outcome then acts as a pointer to the conduct that is now alleged to have been negligent. The term for this is “retrospective bias,” and it is threaded through every medical negligence case from the first allegations in the complaint to the final summation to the jury.
Doctors will point this out and ask how it can be permissible to hold a doctor responsible for what was only known later.
The answer is that that is not what is being done, and, in fact, doing so would be completely inappropriate. The actual liability model is one that presumes that every doctor should expect that every encounter with a patient will be for diagnosis or treatment of a potential underlying condition so that a lawsuit based on one is not improper.
Of course, most doctors will respond that that is holding them to an infinite responsibility. However, it actually stays completely within the scope of how negligence is assessed.
For example, consider a case alleging misreading of a chest X-ray. The jurors now know that a lung cancer was present, but within the scope that a radiologist is aware that every chest X-ray that they read may detect lung cancer the analysis of the radiologist’s conduct is no different from the points that we looked at above: was the reading of that study done at the required level or not?
What is never permissible, though, is trying to establish negligence with a question such as, “If you knew then that there was a cancer would you have done anything differently?” Again, that is because of the criteria for a negligence analysis, in this case that it be locked to the circumstances that applied when the negligent act or omission is alleged to have been committed. While it may be true that every doctor should always assume that a serious condition may be present at any time, the standard of care cited in the case is fixed to the circumstances of the events, and the requirement to be met is to have acted reasonably under those.
These points will all be explained to the jurors by the judge, and during their deliberations they will use instructions—specific questions that they have to individually address—that come from a pattern template but which both sides submitted case-specific revisions on. They will understand that they must set aside any conventional negative meaning that they attach to the word “negligence” and any influence of now knowing that the problem was present and instead focus only on whether the defendant doctor met the medical standards that the specific situation required them to meet at the specific time in the specific plaintiff’s care.
In summary, the legal concept of negligence should be separated from any reflexive offense at the word, and it should instead be understood as a comparison to a situation in which the physician’s duty of care to their patient would have been met. The evaluative process to determine negligence is actually, therefore, designed to be fair because it does not demand that a doctor be perfect or that they follow a single cookbook method of diagnosis or treatment, and instead looks at the real-world circumstances when the care was given and at the reasonability of the doctor in meeting their duty to the patient under those circumstances.