Gregory Brown, RN, ET

The Current Climate

In recent years, the concept of patients as “consumers of health care” has risen to the forefront. Rather than blindly trusting clinicians, the consumer–patients of today are better educated, more aware of healthcare issues, and more willing to make use of legal resources when treatment goes awry. Although wound care generates no more litigation than many areas of healthcare practice, and arguably less than some others, the threat of litigation may affect the way clinicians approach the delivery of care.

Clinicians need to protect themselves while ensuring evidence-based, high-quality care to their consumer–patients. This chapter sets forth basic legal principles and suggests practice strategies that advance patient care and protect clinicians.

Litigation

During the course of human history, it became apparent that nonviolent means of settling disputes must be developed. The law and the legal process, including litigation, continue to be one of civilized society’s experiments at achieving nonviolent resolutions to disputes. The success of this experiment is itself the source of much dispute, to which no resolution (nonviolent or otherwise) is currently in sight.

Contrary to television and film portrayals, the real-life litigation process is arduous and time-consuming. While fictitious television and film lawsuits resolve in a matter of weeks or months, usually ending with a dramatic trial resulting in a stunning jury verdict, most real-life cases take years to get through the legal system. In some jurisdictions with crowded dockets, they can take as long as 5 years to resolve. Those that require appeals can take considerably more time before all issues are finally put to rest. Trials (dramatic or not) are few and far between, as nearly all lawsuits are settled before trial. When trials do happen, they’re usually slow-moving, uninteresting events that tax the patience and attention of jurors. Litigants expecting “Perry Mason” moments from their attorneys are sure to be disappointed, and, as anyone who has ever served on a jury knows, closing arguments by attorneys are never, ever over in the 5 minutes before the final commercial.

Despite the difficulties and drawbacks, the litigation process does afford citizens an impartial forum for dispute resolution grounded in the law. And the law, as Plato stated, is “a pledge that citizens of a state will do justice to one another.”

The discussion in this chapter is limited to civil litigation, that is, litigation in which citizens have a dispute with each other—rather than criminal litigation, in which the state or a government seeks to prosecute a party for the violation of law. There are significant differences between the two forms of litigation (e.g., standards of proof). The remedy sought in civil litigation is monetary damages. In contrast, only the prosecuting state or government may seek to deprive the alleged lawbreaker of his or her liberty by incarceration.

How Is a Medical Malpractice Lawsuit Born?

Litigation begins the moment a person believes he or she has been wronged by another and seeks the advice and counsel of an attorney in an effort to “right the wrong” or “get justice.” During the initial interview between the prospective client and the attorney, the attorney makes a number of preliminary judgments usually based solely on the client’s presentation:

• Is this the type of case the attorney is capable of handling? Does it fall within his or her expertise and practice experience? Does the attorney have the time to handle the matter?
  
• Is the client’s story credible?
  
• Will the client make a good witness?
  
• Are the damages, if proven, sufficient to warrant entering into the litigation process?
  
• Is there a party responsible (liable) for the client’s injuries?
  
• How likely is it that both liability and damages can be proven?
  
• Are there any glaring problems or difficulties with the case?

If the answers to these questions are satisfactory and the client wishes to retain the attorney, a lawsuit has then been conceived.

Before filing the legal documents that start the litigation process in a medical malpractice case, most attorneys perform an intensive investigation in order to definitively answer questions concerning liability and damages. Medical records and other information must be obtained and examined by an expert to determine whether a malpractice claim can be made. Information related to the identities of potential defendants must be analyzed, and strategic legal issues related to jurisdiction (which court can the case be brought in) must be thought through. If after this investigation the attorney still believes the case has merit, legal papers starting the actual lawsuit will be filed, and a lawsuit will be born (Box 3-1).

The Pretrial Litigation Process

The pretrial litigation process consists of several steps: complaint and answer, discovery, and motion practice.

Complaint and Answer

The initial legal paper that gives rise to a lawsuit is called the complaint. While procedural requirements vary between jurisdictions, generally the complaint is a document that sets out the claims made by the plaintiff against the defendant, the basis of the jurisdiction of the court, the legal theories under which the plaintiff is making the claims, and, in some jurisdictions, the amount of damages claimed.

The defendant must then file an answer within the permitted time that responds on a count-by-count basis to the plaintiff’s complaint and that, depending again on jurisdictional rules, may also include claims against the plaintiff. These two basic pleadings initiate the formal lawsuit.

Discovery

Discovery is the process by which the parties find out the facts about each other, about the incidents that have given rise to the claims of malpractice alleged by the plaintiff, and the defenses to those claims asserted by the defendant. The law has provided discovery devices—procedural mechanisms by which the parties ask for and receive information. Demands are routinely made for documents and other tangible items related to the lawsuit’s claims, for statements made by the parties to others, and for the identification of witnesses to the incidents. Then, pretrial testimony (deposition) is taken of the parties to the lawsuit. This testimony, while out of court, is sworn testimony transcribed by a certified court reporter and can be used for any purpose in the lawsuit, including for purposes of impeachment—the demonstration of prior untruthful or inaccurate testimony, or a challenge to the credibility of a witness—at trial.

Finally, expert discovery—information about the opinions of experts retained by the parties—is usually permitted. Experts are individuals accepted by the court to assist the finder of fact—the jury—in understanding issues that commonly fall outside of the experience of the typical juror. In medical malpractice cases, the plaintiff must prove that there was a deviation from the standard of care that resulted in an injury. Expert testimony related to the field of medicine, treatments, and standards of care at issue in the case is essential to successfully meet proof requirements for each element of a malpractice claim brought by a plaintiff. Likewise, the defense of such claims requires opposing expert testimony—in essence, an explanation by a credentialed individual supporting the actions taken by the defendant from which the claim of malpractice stems.

Motion Practice

Disputes over discovery often arise in the context of a lawsuit, and those disputes that can’t be resolved by the parties require court intervention. Formal resolution of these disputes usually requires an application to the court—a motion—setting forth the dispute and the position of the party making the application (the moving party, or movant) and requesting certain relief or results to be ordered by the court. Naturally, this requires a response from the other party—the opposition—that sets out the reasons why the court shouldn’t grant the relief requested.

Some motions can be decided by the court on the papers, that is, without a formal oral presentation (oral argument) by the parties before the judge is assigned. More complicated motions, especially those seeking to eliminate or modify legal claims, almost always require argument before the presiding judge or court.

The Trial

While the vast majority of lawsuits settle before trial (“out-of-court settlements”), some cases do proceed to trial. Medical malpractice trials are almost without exception jury trials. Once it’s determined that settlement isn’t an option, a trial date is set and the attorneys begin to prepare. In federal jurisdictions and many state courts, litigants are required to prepare pretrial statements and submissions. They also disclose exhibit lists (materials and documents the attorneys anticipate they will use at trial). They may also designate deposition testimony to be read or, if the testimony was videotaped, to be shown at trial. The pretrial submission and disclosure process helps to ensure that the trial is as fair as possible and eliminates the possibility of “trial by ambush.” Thus, the “Perry Mason” moments of television and film renown are relatively few and far between.

On the day of the trial, the attorneys for the parties proceed with jury selection. Each attorney tries to select jurors that he or she believes will decide in favor of (find for) his or her client. Procedurally, the jury selection process varies widely by jurisdiction. In some courts, the trial judge will take an active role by questioning the jurors. The fight over selection is then left to the attorneys. Other jurisdictions permit the attorneys to question jurors directly without court supervision and the trial judge becomes involved only when a dispute arises. As you can imagine, jury selection in a jurisdiction with strong judicial control is a much briefer process than in those jurisdictions where the attorneys are left to their own devices. No matter what the individual procedure, once the jury is chosen (empanelled), the trial begins.

At trial, the parties each give an opening statement, one of the two times in the entire trial that the attorneys are permitted to speak directly to the jurors. After opening statements, the plaintiff’s attorney presents the plaintiff’s case. As the burden of proof is on the plaintiff, the plaintiff’s attorney goes first. After the plaintiff’s direct case is finished, the plaintiff “rests,” and the defendant’s attorney presents the defendant’s case. The direct case consists of evidence (testimony, documents, etc.) presented by the attorney for a party. The party has the right to cross-examine each witness after the direct examination, and then additional examination may follow (“redirect” and “recross”) as necessary. After all the evidence has been presented by both sides, the parties make closing statements (summations), which is the last time the attorneys are permitted to speak directly to the jurors.

Once summations are completed, the judge then instructs the jurors on the appropriate law that they’re to apply to the facts of the case. Remember that the jury is the finder of fact—it determines what happened, when it happened, who did it, where it happened, and how it happened—and the judge is the interpreter of the law. After the jurors receive the judge’s instructions, they leave the courtroom and begin deliberations.

Every trial attorney hopes to be lucky enough to serve on a jury that goes to deliberations. For trial lawyers, understanding what happens inside the jury room during deliberations is the Holy Grail of trial practice. In jurisdictions that permit attorneys to interview jurors after verdict, attorneys often spend many hours with the jurors who are willing to discuss the case in order to determine what did—and what didn’t—work during the trial. It’s often surprising to find that what the lawyer thought was of prime importance wasn’t so important to the jury. The jury room in our legal system is sacrosanct, and, no matter how it happens, the jury will arrive at a verdict that will be delivered to the parties in open court. Once the verdict is read and the jury excused, the trial is over.

Appeals

Each jurisdiction has an appellate process, of which the litigants may take advantage. Depending on the jurisdiction, appeals may add years (and many dollars) to the resolution of claims and lawsuits.

Legal Elements of a Malpractice Claim

A medical malpractice claim is made up of four distinct elements, each of which must be proven to the applicable standard of proof in the jurisdiction of the case. The usual standard of proof for civil cases is a preponderance of the evidence. The preponderance standard can be best described as a set of scales that represent the plaintiff on one side and the defendant on the other, which are evenly balanced at the start. The party that wins is the one on the side of the scale that dips lower at the end of the trial. In other words, in order to prevail, plaintiffs need to show by only 50.0000001%—just a bit more than one-half—that they’ve proven each of the elements that make up a malpractice claim.

The four general elements that make up a malpractice claim are:

• existence of a duty owed to the plaintiff by the defendant
  
• breach of that duty
  
• an injury that is causally related to that breach of duty
  
• damages flowing from that injury that are recognized by law.

Duty

In general, there is no duty to protect a person endangered by the actions or omissions of another if there is no special relationship between the two persons. The patient–physician relationship is the basis for the claim of duty between the plaintiff–patient and the defendant–healthcare professional in medical malpractice cases because that relationship permits the patient to rely on the physician’s knowledge, expertise, and skill in treatment. Thus, the allegations of medical negligence arise within the course of that professional relationship. Translating that definition into healthcare terms, some examples of a duty may be the obligation of a healthcare practitioner to give patients care that is:

• consistent with the level of his or her experience, education, and training
  
• permitted under the applicable state practice act
  
• authorized or permitted under the policies and procedures of the institution that are applicable to the position.

Breach of Duty

In addition to proving the existence of a duty, the plaintiff must also prove the defendant breached that duty. Breach of duty can result from commission, omission, or both. Most often, to establish this element of the claim, the plaintiff in a medical malpractice case must also show that the defendant healthcare practitioner deviated from an accepted standard of care or treatment. The practitioner isn’t required to provide the highest degree of care, but only the level and type of care rendered by the average practitioner. What the standard of care is, and whether and how it was deviated from, must be established for the jury, and this is most often the province of expert testimony.

Breach of duty in the healthcare setting may be illustrated in the following ways:

• failure to give care within the applicable practice act
  
• failure to perform professional duties with the degree of skill mandated by the applicable practice act
  
• failure to provide care for which the circumstance of the patient’s condition warrants.

Injury Causally Related to a Breach of Duty

In a medical malpractice case, proof of an injury isn’t enough unless that injury can be causally linked to a breach of duty by a healthcare practitioner. That breach of duty is then considered the proximate cause. Without the breach of duty, the injury wouldn’t have occurred (Box 3-2).

Proximate cause in the healthcare setting can be illustrated by the following examples:

• fractured hip due to a fall because of failure to raise the side rails of the bed
  
• decreased total protein due to failure to provide nutrition (either failure to provide actual nourishment or failure to order/call a consult)
  
• osteomyelitis resulting in limb amputation following failure to attain/call an infectious disease consult and provide antibiotic therapy.

Damages

Finally, the fourth element that makes up a malpractice claim is damages. A healthcare practitioner may be held liable for damages when the jury finds that the practitioner deviated from the applicable standard of care in treating the plaintiff–patient and, as a result, caused injury resulting in legally recognized damages. In most jurisdictions, a plaintiff may recover for proven monetary losses (lost wages and unreimbursed medical expenses) and for pain and suffering that result from the proven injury. As noted previously, it’s the jury—the finder of fact—that sets the monetary award to the plaintiff.

As we have shown, in order for a plaintiff to prevail in a medical malpractice claim, all four of the elements discussed above must be satisfied. Three of four won’t do. They must score perfectly on all four to prevail before a jury.

The Medical Record in Litigation

The medical record is arguably the single most important piece of evidence in a medical malpractice case. It serves as a crucial tool for the delivery of science-based care. It is also:

• a legal document
  
• a communication tool
  
• the supporting basis for treatment decisions and modifications
  
• one of the primary tools for the evaluation of treatment modalities.

At one time or another in the education of a healthcare practitioner, whatever the specialty or discipline, this directive is taught: “If it wasn’t written down, it didn’t happen.” Nowhere does this statement ring more true than in a medical malpractice case (Box 3-3). Before we consider the role documentation plays in the medicolegal world, let’s first consider for a moment how important the medical record is in the care and treatment of patients.

The medical record serves several purposes. First and foremost, it is a communication tool that allows real-time coordination of care by multiple disciplines. It also acts as a historical record to determine the efficacy of past interventions and guide future care. The medical record is also a factual record utilized in lawsuits to determine the quality of care rendered, the occurrence of physical harm, and other legal issues. Most state boards (nursing, medical, and other licensed healthcare professionals) and federal regulatory agencies require “timely and accurate” documentation of findings in the medical record. Due to the wide range of specialty care areas and ever-changing rules, regulations, and laws, state and federal boards offer little guidance on how to meet this documentation standard. It’s left to the individual facility or provider to determine the appropriate standards. The absence of standards has resulted in a wide range of documentation practices.

Communication Tool

The medical record is the primary method of communication between members of the healthcare team. Oral report and rounding are essential communication devices, but it’s impractical and unrealistic to expect that every healthcare team member be present during report or rounds. Such disciplines as physical therapy, occupational therapy, and respiratory therapy may not be present for report or rounds. The myriad medical specialists available to the primary physician (e.g., infectious disease consultants) are also rarely present during rounds, yet it’s imperative for the delivery of good science-based care that every healthcare team member have the most current and up-to-date patient information. The medical record is the only way to accomplish this. It’s available 24 hours per day to any practitioner who can utilize it to stay informed about the patient’s progress.

Treatment Evaluation and Support

Documenting patient treatment outcomes and responses in the medical record is a key method for evaluating treatment modalities and therapies. The typical patient with pressure ulcers will undergo an extended course of treatment that will change over the course of time. In order to establish a basis for treatment and modification, there must be well-documented observations and evaluations of the patient. Upon initiation of treatment, careful observation and documentation of the patient’s condition is critical in order to establish a baseline for initial treatment and care. Without a carefully documented record, treatment, evaluation, patient outcomes, and treatment modifications are impossible to justify in court (Box 3-4).

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