Acknowledgment
The author would like to acknowledge R. Monty Cary and James L. Cary, the authors of this chapter in the previous edition.
A physician assistant’s (PA’s) medical practice deals in a world of gray. There are few clinical situations a PA encounters that clearly and unequivocally present themselves so that a ready diagnosis and treatment plan can be implemented. The vast majority of patient encounters will result in the most common “gray” component of your practice: the differential diagnosis. Through a differential diagnosis, the PA sorts out the “grays,” ultimately arriving at a workable diagnosis and treatment plan.
In this world of “grays,” a significant percentage of PAs are now being exposed to the black and white world of the law. Although legal matters affect a PA’s practice in multiple ways and on a daily basis (Health Insurance Portability and Accountability Act [HIPAA], medical coding and billing, insurance contracts, business contracts, employment contracts, office and equipment leases), there is one area of the law that can have a significant and profound professional and emotional impact on a PA: involvement in a medical malpractice lawsuit. In the event a PA gets sued for professional malpractice, she or he will experience firsthand the very uneasy juxtaposition of law into medicine. For perhaps the first time, the PA will encounter attempts by legal professionals to take the gray world of medicine and subject it to the black and white world of law. This process, and often the result, can be a very unnerving experience. Unquestionably, it will enhance a PA’s understanding of the law even if as a fairly unwilling participant in several legal processes, including written and oral discovery, depositions, and, perhaps, a trial. Such experiences will leave a marked impact, both professionally and personally, and may even change the PA’s practical and emotional approach to clinical practice.
The purpose of this chapter is simply to highlight some basic legal concepts a PA will encounter in the event of involvement in a medical malpractice lawsuit. Suggestions are also made for some risk management principles that may lessen the likelihood of involvement in a medical malpractice lawsuit.
What is Medical Negligence?
As a general proposition, “medical malpractice” can be defined as follows: In rendering professional services, a PA has failed to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under similar circumstances by members of the PA profession engaged in a similar practice in the same or a similar locality.
Although several legal theories may form the basis of a medical malpractice lawsuit against a PA, the most common theory is one based on negligence. The concept of negligence is not unique to a medical malpractice lawsuit. The same basic principles of negligence apply equally to a lawsuit or claim involving the occurrence of an automobile accident, a premise liability event (i.e., a slip and fall case), or even a dog bite case. To recover on a negligence claim, the person bringing the claim or the lawsuit (the “claimant” or, in the case of a lawsuit, the “plaintiff”) must establish against the person who is being sued or against whom the claim is brought (“the defendant”) four components of a negligence claim:
- 1.
The existence of a duty running from the defendant to the plaintiff
- 2.
The breach of the duty by the defendant
- 3.
Injuries sustained by the plaintiff
- 4.
Proof that the injuries were legally caused by the breach of duty
Duty
The first element a plaintiff must establish in a medical negligence lawsuit is the existence of a duty. This duty arises out of the PA–patient relationship. After that relationship has been established, a PA must possess and bring to that relationship that degree of knowledge, skill, and care that would be exercised by a reasonable and prudent PA under similar circumstances. The knowledge, skill, and care established by a profession and as required to be rendered in any patient–PA encounter comprise the “standard of care.” In a medical malpractice lawsuit, a plaintiff must show that the defendant PA failed to exercise the applicable standard of care by commission or omission. That is, the plaintiff establishes a breach of the standard of care by the PA doing something that should not have been done or by failing to do something that should’ve been done. “Good faith” or “best intentions” have no place or meaning in a medical malpractice lawsuit. Instead, the PA will be judged on whether or not conformance occurred with an acceptable and recognized “standard of care.”
Breach of Duty
The second element of medical negligence a plaintiff must prove is that of “breach of duty.” A plaintiff establishes this element by proving the PA failed to act in accordance with the applicable standard of care. Of course, before a plaintiff can establish that a breach of the standard of care occurred, the plaintiff must first establish what constitutes the standard of care. In most cases, the existence of a standard of care must be proved through the use of expert witnesses. That means the plaintiff must retain as a witness another PA qualified to testify as to the standard of care owed by the PA being sued. An expert witness must testify that, based on that expert’s knowledge, education, training, and experience, a specific standard of care exists concerning the alleged act of malpractice committed by the PA being sued. Furthermore, the expert must also testify as to the manner in which the PA breached the standard of care. After the plaintiff establishes in a lawsuit both the existence of a standard of care and its breach, the PA may also use expert PA witnesses or the PA’s own testimony to demonstrate that no such breach of the standard of care occurred. Although the vast majority of cases rely on expert witness review and testimony to establish the standard of care and a breach thereof, some medical malpractice cases do arise in which the alleged breach of duty is so obvious as to be within the comprehension of a layperson, and no expert testimony is needed. Cases such as wrong site surgeries and failure to remove a lap sponge are examples that probably do not require an expert witness to establish a standard of care, or that a standard of care was breached by a PA.
Importantly, a PA is not held to a standard of “perfect” medicine. Liability for medical malpractice will not arise merely because a PA makes an incorrect diagnosis or institutes an incorrect plan of treatment. The key to determining if a breach of the standard of care occurred is examining the process used by the PA in arriving at the diagnosis or deciding on a plan of treatment and whether or not the process met the standard of care.
Causation
The third element of a negligence case a plaintiff must prove revolves around the relationship between the negligent act or omission committed by the PA and the resulting injury. The plaintiff must establish a “causal connection” between the negligent act and the injury. In legal terms, the “causal connection” is commonly referred to as “proximate cause.” The concept of causation differs markedly from that of causation as used in medical terminology. In the legal sense, “causation” refers to a single, causative factor and not necessarily the major cause or even the most immediate cause of the injury. In contrast, medical causation or etiology usually refers to the major or immediate cause of an injury. Causation can often present as an elusive and difficult concept to understand for both medical professionals and juries. One way for laypeople to grasp the meaning of causation is an awareness of the “but for” test. In simplest terms, if one occurrence would not have occurred “but for” another occurrence, legal causation exists. As contrasting examples, a PA participating in a surgical procedure may leave behind instrumentation resulting in an intestinal perforation with possible subsequent development of abscesses, future surgeries, or even death. The intestinal perforation would not have occurred “but for” the failure to remove the instrumentation and perform a proper count of instrumentation at the conclusion of the surgery. Legally, the failure to remove the instrumentation created the proximate cause of the patient’s injuries. In contrast, a physician or PA’s delay in diagnosing a patient or even delaying referral of a patient who has a highly aggressive malignant and terminal neoplasm might be considered an act of malpractice. However, depending on the stage of the tumor at the time of the initial presentation, the failure to diagnose or refer may not have legally caused the patient’s ultimate outcome (i.e., death). In other words, the tumor may have been so advanced at the time the physician or PA failed to make the proper diagnosis or failed to make a proper referral that even a timely referral or proper diagnosis would not have saved the patient. In such a case, the breach of the standard of care (the delay in making the proper diagnosis or referral) did not proximately cause the patient’s death. The patient already had an unavoidable death sentence even at the time of the alleged misdiagnosis.
Injury and Damages
The last element a plaintiff must prove in a medical malpractice claim is proof of damages. In general, the concept of damages encompasses the actual loss or damage sustained by the plaintiff arising from the PA’s breach of the standard of care. If the plaintiff cannot prove harm, there can be no recovery.
Generally speaking, two types of damages may be awarded in a civil lawsuit: special damages and general damages. Special damages are damages that have a finite or tangible economic number attached to them. Examples of special damages are the amount of past, present, and future medical bills incurred as a result of the medical negligence; past, present, and future lost wages; future lost wages arising out of the loss of earning capacity; and in a wrongful death malpractice claim, funeral expenses. The other type of damages, general damages, are awarded for the nontangible, noneconomic injuries. These types of injuries include pain and suffering, mental anguish, grief, and inconvenience.
A third type of damage may be awarded in a medical malpractice lawsuit, but not all states or jurisdictions recognize this third form: punitive damages. Currently, 34 of the 50 states in the United States do allow awards that include the possibility of punitive damages. Punitive damages are intended to make an example of the defendant PA or to punish egregious behavior. Such damages generally are given when the defendant’s conduct has been intentional, grossly negligent, malicious, violent, fraudulent, or with reckless disregard for the consequences of his or her conduct. Again, not all states allow for punitive damages, so PAs must familiarize themselves with the laws of the jurisdiction where a practice is established.
Other Theories of Recovery
Several other potential theories of liability may give a plaintiff a cause of action against a PA. These theories are not based on the concept of negligence. Instead, they have their own, individualized elements that must be established and proven by a plaintiff to make a recovery. The most common of these other theories are abandonment and lack of informed consent.
Abandonment
When a PA agrees to treat a patient, that PA agrees to provide a continuity of care until the patient is cured or stabilized. The patient cannot be abandoned, and the PA must provide an adequate surrogate when the PA and the supervising physician are unavailable. Many practices meet this obligation by making arrangements with a partner or nearby colleagues in the same or similar field of practice. Backup may also be provided by directing ambulatory patients to a nearby, physician-staffed hospital emergency department. Brief lapses of coverage are generally considered reasonable.
Informed Consent
Central to any PA–patient relationship is a complete and total disclosure by the PA to the patient of the risks and benefits of any proposed course of treatment—the informed consent talk. Under informed consent principles, a PA’s duty to obtain informed consent is measured by information that would ordinarily be provided to the patient under similar circumstances by health care providers engaged in a similar practice in the locality or in similar localities. In general, the PA must communicate to the patient information that a reasonable patient would require to make an “informed” judgment about whether to consent to such treatment. Such information includes the risks and benefits of proposed treatment, as well as available alternatives, including no treatment at all. Furthermore, as part of the PA–patient relationship, the PA also has an obligation to disclose to the patient the consequences of failing to undergo a recommended medical procedure, and the PA can be held liable for malpractice if such a disclosure is not made.
Informed consent is a process, not a form. The PA should never delegate the informed consent discussion to a coworker or referring physician. This talk represents a very important component of the overall PA–patient relationship and creates a prime opportunity for the PA to develop open and honest lines of communication with a patient. As part of the informed consent process, the PA must carefully document when, where, and what was discussed with the patient. Many specialized practices have, understandably, specialized informed consent forms. If a PA is part of a specialty practice, the PA must be familiar with the language of such forms and ensure the language accurately describes the specific risks and benefits facing the patient. The timing of the informed consent discussion is also an important component in establishing whether or not the standard of care in the giving of an informed consent has been met. There are no hard and fast rules in regard to such a time frame, but the topic must be discussed with the supervising physician to ensure a timely informed consent has been given pursuant to the dictates of the practice. Also, different people learn information in different fashions. Some people learn well by listening, others by reading, and yet others by watching. A clinical or hospital-based practice should make available to patients different mediums of information necessary to give an effective informed consent. In addition to the verbal giving of the informed consent by the PA, the patient should be given the option of reviewing written materials about the procedure or watching a video or DVD covering the informed consent topic. These latter two forms of communicating informed consent information cannot replace the personal informed consent talk the PA must have with the patient before any course of treatment. They may supplement the informed consent talk, but the standard of care requires that the PA or physician personally handle the informed consent discussion.
As a general rule of thumb, when giving the informed consent information, communicate the information to the patient that you would want to know if your spouse, parent, or child were undergoing this same procedure or treatment. Again, good communicative skills are a must in a PA practice, and the giving of a thorough informed consent talk and documenting it can go a long way toward preventing future malpractice action.
Elements of a Lawsuit
Despite a PA’s best efforts and practice, a medical malpractice lawsuit may arise. As a side note, recent studies have indicated that although PAs do get sued for malpractice, the overall rate at which they get sued is significantly less than the rate at which physicians get sued. One such study indicated that over a 17-year period between 1991 and 2007, there was one malpractice payment for every 32.5 PAs, but there was one payment for every 2.7 physicians.
Also of note are the statistics on why PAs get sued. In order, the reasons for suits are errors in diagnosis, treatment, medication, and surgery. A growing area of lawsuits, though, stems from a PA failing to make a timely referral to a specialist or physician.
Just as any patient coming into a medical practice office may have fears regarding the unknown medical care or treatment that awaits that patient, many health care providers have a fear of the medical malpractice lawsuit simply because of the unknown and totally foreign concepts and procedures involved in a lawsuit. The following pages contain some basic information about the elements of a lawsuit. This information will not make you a lawyer. In fact, it won’t even scratch the surface of what all is involved in a medical malpractice lawsuit, particularly in terms of the time, knowledge, expertise, and effort a medical malpractice defense attorney will put into defending a health care professional in a medical malpractice case. However, this information will provide the basics in terms of the process and terminology involved in a medical malpractice lawsuit.
Initial Filings
There is no magic to the filing of a medical malpractice lawsuit. The patient who believes an injury occurred as a result of a PA’s negligence merely has to find an attorney willing to undertake representation of that patient in a lawsuit. The attorney will prepare the opening document, called a petition or a complaint, and pay the local court filing fee, and the suit is under way. The defendant must be legally served with a copy of the lawsuit. If a PA is served with a copy of a lawsuit, care must be taken to immediately get that document into the hands of the PA’s employer risk manager, the office manager, the malpractice insurance carrier, or the practice’s attorney. After defense counsel is engaged, that attorney will look at preliminary matters such as whether or not the lawsuit was timely filed (a statute of limitations question), if the lawsuit truly states a cause of action against the PA, or if the court even has jurisdiction over the matters alleged in the lawsuit. Any one of these issues may result in a pre-answer being filed with the court and an attempt at obtaining an early dismissal of the lawsuit. If the lawsuit cannot be disposed of on a pre-answer basis, the defense attorney will then file an answer to the lawsuit in which the allegations of the lawsuit are admitted or denied. The attorney may also raise certain affirmative defenses to the petition or complaint. Such defenses could include the absence of a PA–patient relationship, no breach of the standard of care, a lack of causation, no injuries or damages as alleged by the plaintiff, the fault of others over whom the PA had no control, or even the comparative fault of the plaintiff in causing his or her own injuries.
Discovery Stage
The next stage of the lawsuit involves discovery. Discovery primarily occurs in two forms: written discovery and oral discovery. Written discovery consists of written questions called interrogatories, a request for production of documents, requests for admissions, and subpoenas to other entities that may have information about the lawsuit (employment records, other health care providers, police reports, and so on). Interrogatories are exchanged between the parties to learn background information, not only about the parties themselves but also as to the existence of any fact witnesses, documents that will support either side’s theory of the case, and identities and opinions of expert witnesses. The requests for production are used so that each party may obtain from its opponent any documents that side intends to use to prove its case. Such documents may include medical records, educational records, plaintiff’s wage information and income tax returns in support of any lost wage claim, photographs, expert witness reports, and police reports.
After the written discovery has been completed, the parties to the lawsuit then engage in the oral discovery phase of the lawsuit. This discovery occurs in the form of depositions. A deposition is a sworn statement given by a party to the lawsuit, by a fact witness with knowledge about the lawsuit, by a treating physician, or by an expert witness. During the deposition, the attorneys have the opportunity to ask the witness questions about the nature and extent of that witness’s knowledge of facts or opinions concerning the lawsuit. A PA who is a defendant in a lawsuit will give a deposition in that case in which the attorney representing the plaintiff will ask the PA questions about the care, treatment, and decision-making process used by that PA. Before the occurrence of that deposition, though, the PA will meet with her or his attorney to fully discuss the medical records, the care and treatment given to the patient by the PA, and the general scope of the deposition in order to fully prepare the PA for that deposition. Defense counsel will take the deposition of the plaintiff(s) and make inquiry about the plaintiff’s theory as to why the PA was negligent, conversations had with the PA, the patient’s perceptions about the care and treatment given, and any injuries or damages claimed by the plaintiff. Depositions will also be taken of the expert witnesses involved in the lawsuit to determine the basis for any opinions, as well as the scope of the opinions.
Many jurisdictions use case progression standards in which the attorneys involved in the lawsuit are required to complete discovery according to specific time frames. Depending on any scheduling order or trial progression standards entered by the court, the discovery process in a lawsuit could take up to 18 months to complete from the date the suit is filed.
Settlement Talks and Mediation
After the parties complete discovery, they will be in position to know if the case should be tried or if meaningful settlement talks should occur. In regard to settlement talks, the past 15 years have seen a significant growth in alternate dispute resolution proceedings (ADR), such as mediation. A mediation is scheduled so the parties can meet with a neutral third party and over the course of several hours try to work out an amicable resolution to avoid having to take the case to trial and having complete strangers, in the form of a jury, decide the case. Of note, historically, about 85% of all civil lawsuits filed, including medical malpractice suits, do settle before trial. A 2004 study put that figure as high as 95%. Settlements occur for multiple reasons but always involve a compromise of some sort by each side. However, if the parties to the lawsuit either cannot resolve the case at mediation or decide not to mediate a case, the case proceeds to trial.
Trial
Most medical malpractice trials last a minimum of 3 days and, depending on the complexity of the case, could last upwards to 2 weeks. During that time frame of the trial, the PA will be required to attend the trial on a daily basis and participate in the trial as necessary.
The trial follows a very specific order. In a civil lawsuit, the plaintiff must prove each of the four elements of negligence by a “preponderance of the evidence.” This term means simply that the plaintiff must prove its case by the greater weight of evidence. The plaintiff will always go first in a trial because it maintains the burden of proof throughout the trial. Therefore, during the stages of the jury selection process, the opening statements, the case in chief, and the closing arguments, the plaintiff will always have the first opportunity to present its case. The defendant will have the opportunity to participate after each stage of the plaintiff’s case. So, after the plaintiff’s counsel first questions potential jurors during the jury selection process, then defense counsel have the same opportunity. After the plaintiff presents an opening statement, then the defense presents an opening statement. After the plaintiff’s counsel conducts direct examination of each of plaintiff’s witnesses, including the plaintiff, then defense counsel has the chance to cross-examine each witness as soon as plaintiff counsel finishes the direct examination. After plaintiff counsel finishes the plaintiff’s case, then the plaintiff “rests.” At that point, defense counsel presents its witnesses and evidence.
Upon the completion of all evidence, the trial judge and the attorneys collaborate on the jury instructions to be given to the jury. Counsel then make their closing arguments to the jury, again with the plaintiff’s counsel going first. Upon the completion of closing arguments, the judge then instructs the jury and dismisses the jury to the jury room with the written jury instructions, and jury deliberations begin. Most jurisdictions have laws that if a jury returns a verdict within the first 6 hours of deliberations, that verdict must be unanimous. If a jury has deliberated for more than 6 hours and cannot reach a unanimous verdict, then the law will allow a jury to return a less than unanimous verdict but with no more than one or two dissenting jurors. If the plaintiff did prove all four elements of the negligence case (duty, breach of duty, injury, and causation), then the jury will make a monetary award to the plaintiff in the form of special or general damages. If the plaintiff failed to prove any one of the four elements of a negligence claim, then the jury will return a defense verdict in favor of the PA.
The losing party to a lawsuit has the right to appeal the decision to a higher court. If such an appeal takes place, it can easily add 1 to 2 years to the life of the case, and will either result in a higher court affirming the jury verdict or remanding the case back to the trial court for a new trial.
