Annals of Long Term Care

This is part I of a two-part article. Part II will address risk management strategies you can adopt now to reduce your risk of being sued as part of a medical malpractice case.

Medical Malpractice
Litigation claiming malpractice may be directed at LTC facilities and the practitioners who work in them.^1-3 There are four criteria that must be met for malpractice litigation to have merit:

1. Did the named individual or institution have an established duty or obligation to perform a particular service or provide care to an individual?

2. Was there a breach of this duty that fell below the applicable standard of care?

3. Was there an injury to the individual that occurred?

4. Was there a proximate cause that links the breach of this duty directly to the injury being alleged by the plaintiff?

Patients or their families deserve compensation in cases where there has been a clear deviation from the widely accepted standard of care, and a resulting adverse outcome has resulted in death, injury, or disability. There are, however, serious consequences for all involved—including patients—when healthcare providers alter their practice habits, not on the basis of what they believe to be the right course of action, but based on their fear of subsequent litigation.

The American Medical Directors Association (AMDA) has published the results of a survey of its members and their concerns regarding malpractice litigation. Twenty-nine percent of respondents said that they had encountered problems in obtaining or renewing medical liability insurance; 39% of respondents had modified their practices due to liability pressures or concerns; 56% of those who had modified their practices had limited their work as a medical director; and 28% had stopped working as a medical director altogether.⁴ AMDA found that more than 433 nursing home medical directors had to stop working in facilities because they had lost their liability coverage.

Most physicians, nurse practitioners, physician assistants, and nurses have not been sued as part of a medical malpractice action. It is a frightening and unfamiliar experience. This article describes the typical course of a medical malpractice case, and seeks to give advice on how to approach the required elements inherent to a typical case.

Legal Principles
The Standard of Care
The plaintiff’s attorney will seek to establish that there has been a deviation from the standard of medical care expected of the facility and/or practitioner that is being sued, and that this breech of the standard has resulted in harm. To most physicians, the term standard of care connotes an action or treatment that would be expected by a consensus of the medical community in a given situation, or how a physician’s colleagues would act in a certain circumstance. Black’s Law Dictionary defines standard of care as “that degree of care which a reasonably prudent person should exercise under same or similar circumstances.”⁵ Expert witnesses will be retained by both the plaintiff and the defendant to establish that a medical standard was or was not breeched. Both sides may refer to the medical literature and/or clinical guidelines to support their case. The successful prosecution and defense of a medical malpractice suit will often hinge on whether a deviation from the standard of care can be established.

Preponderance of Evidence
Medical malpractice cases are processed by a civil court and are not criminal cases. The judge will determine or advise the jury to determine the outcome of the case based on the standard of the preponderance of the evidence. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.