Malpractice lawsuits are all too common in medicine. By the age of 45, an estimated 36% of doctors in low-risk specialties and 88% of doctors in high-risk specialties can expect to face a malpractice claim, according to a study in The New England Journal of Medicine. By age 65, up to 75% of those in low-risk specialties and 99% in high-risk specialties will face a claim.
Doctors don’t have to be lawyers, but they should know enough legalese to navigate the deep waters of medical malpractice. (What defines “medical negligence,” for instance?) Here are some important medicolegal terms that all doctors should know.
Informed consent is when a patient agrees to medical treatment after the physician explains all the relevant facts, such as the risks involved in the treatment or any available alternatives. When a patient gives informed consent, the patient takes on the liability for those risks.
“For example, a patient may give informed consent to medical treatment only after the healthcare professional has disclosed all possible risks involved in accepting or rejecting the treatment. [However,] a healthcare provider or facility may be held responsible for an injury caused by an undisclosed risk,” according to Nolo’s Plain-English Law Dictionary.
Standard of care
The standard of care is a legal yardstick to gauge whether a physician was negligent. The standard can be defined as “That which a minimally competent physician in the same field would do under similar circumstances.” Note that a doctor only needs to be “minimally competent”—in other words, not incompetent. A minimally competent doctor (or even an excellent doctor) can have a tragic patient outcome while still upholding the standard of care.
The standard of care should not be confused with the duty of care. The duty of care begins when the doctor agrees to treat a patient who has requested their services. The duty of care is the doctor’s obligation to provide appropriate treatment, while the standard of care is what the doctor must do to carry out that duty.
Medical malpractice is substandard, improper, or negligent medical treatment of a patient that results in injury or death. Medical malpractice occurs when a healthcare provider fails to provide the quality of care that should reasonably be expected in the circumstances, and the patient is harmed as a result.
A valid malpractice claim requires four conditions to occur:
A physician-patient relationship must exist.
The patient must have been harmed.
The physician must have been negligent.
The physician’s negligence must have caused the patient’s harm.
Incidentally, the number one reason for malpractice claims is misdiagnosis/failure to diagnose.
Medical negligence occurs when a physician acts in a way that doesn’t meet the standard of care, thus breaching the physician’s duty to the patient.
Medical negligence falls into two types: errors of omission and errors of commission.
An error of omission happens when the doctor fails to do something that should have been done. A delay in diagnosing a patient’s cervical spine injury or neglecting to give a patient her medication are errors of omission.
An error of commission occurs when the doctor does something that should not have been done. Errors of commission include ordering the wrong lab test to or prescribing a dose of medication that’s too high.
Never events are medical errors so shocking and disastrous that they should never have happened. Examples include leaving an instrument inside the patient after surgery, administering a transfusion of the wrong blood type, or operating on the wrong patient. Never events are clearly identifiable, serious (resulting in death or significant harm), and usually preventable.
Researchers reported in the journal Surgery that never events represent more than 4,000 medical malpractice claims paid each year in the United States.
Claims-made vs occurrence
Medical malpractice insurance comes in two basic types of policies: claims-made coverage and occurrence coverage. “Surprisingly, many doctors do not know what kind of malpractice insurance they have,” wrote attorney Vasilios J. Kalogredis, JD, chairman of the health law department at Lamb McErlane PC, on Law.com.
A claims-made policy provides coverage only for incidents that occur and that are reported while you’re covered by the insurance carrier. “In other words, both the incident and the filing of the claim must happen while the policy is in effect. Thus, coverage for malpractice claims completely stops when the policy ends,” Kalogredis explained. “Claims-made policies are much more common because they are less expensive ‘up front’ than occurrence policies.”
An occurrence policy provides coverage for any incident that occurs during the term of the policy, regardless of when the claim is filed. As long as the event occurs during the coverage period, you will be covered. “Thus, if [the physician] has an occurrence-type policy in effect for the calendar year 2017, and a patient files a claim in 2020 for an incident that happened during 2017, the policy covers [the physician] for that claim, even if he no longer has insurance with that carrier,” Kalogredis wrote. “This type of policy is usually considered the ‘better’ option because it provides ‘lifetime coverage’ but can come with a heftier price tag for employers.”
In addition to claims-made coverage discussed above, doctors may need to obtain nose coverage. Sometimes referred to as retroactive coverage or prior acts coverage, a “nose” covers you for malpractice claims on procedures performed while covered under a previous policy but not reported until after you started your current policy. In other words, you buy nose coverage from your current insurer to cover you from any claim arising from when you had your previous policy.
Tail coverage continues to cover you for procedures performed during a policy but not filed as a malpractice claim until after that policy has ended. In other words, it covers you for the same period as nose coverage, but you buy it as you’re ending the policy—as opposed to buying it when starting a new policy (ie, nose coverage). You don’t need to buy both nose coverage and tail coverage.
Damages refers to the amount of money awarded to the plaintiff for the loss, injury, or harm suffered as a result of the doctor’s breach of duty.
There are two types of damages awarded: compensatory and punitive.
“Compensatory damages are recovered for injury or economic loss, whereas punitive damages are awarded to punish a defendant for his or her actions, such as negligence,” according to Northeastern University’s Graduate Programs blog. “A well-known example of punitive damages involved a woman who spilled hot coffee on her lap. The jury, wanting to send a message to McDonald’s, awarded the plaintiff nearly $3 million dollars in punitive damages, although the amount was later lowered by a judge.”
A policy limit is the maximum dollar amount that a carrier will pay for any claim that triggers coverage.
There are two basic limits: per claim limit and annual aggregate limit. The per claim limit is the amount the carrier will pay per incident over the course of one policy term (which is often 1 year). The annual aggregate limit is the total amount the insurance company will pay for multiple claims reported during the term year.
Notably, the majority of US states have “caps” on the amount of money that can be awarded to a patient in a medical malpractice case. Then again, 78% of all medical malpractice claims don’t result in payments to plaintiffs, according to researchers.