Understanding Medical Malpractice Litigation

Knowing the fundamentals of medical malpractice lawsuit can help physicians avoid unwanted legal disputes.


It has been said that the only things that are certain in life are death and taxes. O. William Brown, MD, JD, a vascular surgeon and a professor of law, would add a third certainty: If a physician practices medicine long enough in the United States, he will be named in a medical malpractice suit. If a physician hopes to successfully navigate the shark-infested waters of medical malpractice litigation, he must fully understand the legal process governing the filing and course of a medical malpractice lawsuit.


There are four prongs to any medical malpractice suit: duty, breach of duty, proximate cause, and damages. All four of these must be present if a medical malpractice suit is to be successfully filed. Duty is most often estab- lished by proving that a physician-patient relationship existed. Breach of duty refers to a violation of the stan- dard of care. Proximate cause means that the negligence on the part of the physician was the cause of the patient’s damages. Finally, the patient must show that he did, in fact, sustain damages.


A physician-patient relationship may be established in one of several ways. If the patient is seen by the physician in his office or is seen in the hospital in response to a consultation, a relationship has been established. Similarly, if a physician is called by his resident or by a nurse regarding a patient in the emergency room, a relationship will most likely be deemed to have been established. A relationship may sometimes be assumed to exist by a simple comment made by a physician in a social setting. For example, if a vascular surgeon, after being questioned by a fellow party guest concerning leg swelling, tells the guest that the swelling is probably not significant, a physician-patient relationship may be presumed to have been established. Accordingly, if the guest in question subsequently develops a pulmonary embolism and dies, the physician may be held liable. It should be stressed that whether or not the physician has charged or been paid for his services is unimportant in determining if a physician-patient relationship exists. However, a routine hospital consultation must be distinguished from the unique entity of a “sidewalk consultation.” A sidewalk consult occurs when one physician informally discusses the medical findings of a patient with another physician and asks the second physician for advice on how to care for the patient. The legal system has determined that this type of request for assistance does not establish a physician-patient relationship.

A physician-patient relationship may be terminated in one of three ways. First, the patient can dismiss the physician. Second, the physician may withdraw from giving care, but only after providing the patient with sufficient notice. Finally, if the patient’s medical problem has been resolved, the physician-patient relationship no longer exists.


The standard of care may be established in one of five ways. Most often, it is determined by expert witnesses. The definition of a medical expert varies from state to state. In some states, any physician may give expert testimony in any type of medical malpractice case. In other states, the qualification of the expert is more narrowly tapered. In Michigan, if the defendant is board certified, the experts must be board certified in the same specialty. The standard of care may also be established by the defendant if the defendant admits that he has violated the standard of care. The third method is known by the Latin phrase res ipsa loquitur, or it speaks for itself. An example would be leaving a sponge in the abdomen of a patient after a laparotomy. A fourth method of determining the standard of care is by the plaintiff, if he is a medical expert. The final method is by citing the common knowledge doctrine. An example of this would be performing extensive x-ray evaluations on a woman who is in the first few weeks of her pregnancy. Even a layperson knows that x-ray use early in pregnancy can produce birth defects.

The standard of care applied to physicians is a national standard. That is, a physician from the small city of Munising, Michigan, is held to the same standard of care as a physician in Boston, Massachusetts. Location becomes a consideration only when hospital equipment is an issue. A physician cannot be held liable for failing to obtain a 128-slice computed tomography scan on a patient if the hospital does not have such a scanner.

Finally, the standard of care is not static. It may be altered by clinical data or changes in technology. Today, the standard of care for the treatment of an isolated, 2-cm noncalcified common iliac stenosis is not the same as it was 20 years ago.


The statement “risks and benefits discussed with the patient” does not constitute informed consent. Any note attempting to establish informed consent must contain at least five basic components: diagnosis, treatment plan, risks and benefits, treatment alternatives, and prognosis with and without treatment. In addition, the physician must tell the patient anything that could affect his decision as to whether or not to proceed with the treatment.

Moreover, obtaining informed consent is a nondelegable duty, meaning that the informed consent for a procedure must be obtained by the physician performing the procedure and not the resident or physician assistant who is helping the physician with the procedure. Lastly, a signed operative consent form does not constitute informed con- sent. In truth, the only purpose of the operative consent form is to protect the physician from liability for civil or criminal battery. This is particularly important when one considers that malpractice insurance will not cover mone- tary verdicts resulting from a civil battery suit.


There are several medical malpractice defenses. The first is that the physician acted in a manner consistent with a reasonably prudent physician. A second defense is that the damages were a result of an error in judgment and not negligence. A third defense is “assumption of the risk.” An example of this would be a patient, who was told not to run after having a hip replacement, deciding to participate in a marathon, whereby the hip becomes dislocated. Contributory negligence is a fourth defense. An example of this would be if a patient was told to stop smoking after a femoropopliteal bypass but continued to smoke three packages of cigarettes per day. Let us assume the graft occludes. Even if the vascular surgeon placing the graft was found to be negligent, many states would reduce the award by the percentage that the patient contributed to the graft’s occlusion by continuing to smoke cigarettes.


In most states, a Good Samaritan statute exists. This statute covers physicians who provide medical care in an emergency situation to patients whom they have no duty to treat. The classic example of a Good Samaritan is a physician who stops at the side of the road to help an accident victim. However, in many states, the Good Samaritan statute has been extended to cover acts that occur within the hospital. For example, if a vascular surgeon is called emergently by an orthopedic surgeon to assist in the repair of a popliteal artery injured during a total knee replacement, the vascular surgeon, if he is not on call, can refuse to see the patient. If the vascular surgeon does choose to help the orthopedic surgeon, under the Good Samaritan statute, the vascular surgeon cannot be held liable for ordinary negligence; the vascular surgeon can only be held liable for willful or wanton acts (those that are intentionally negligent). It is therefore important for all vascular physicians to be familiar with the Good Samaritan statute in the state in which they practice.


Although statutes of limitation vary from state to state, it is important to remember that there is no statute of limitation for fraudulent concealment. Therefore, it is imperative that the patient and the patient’s family be informed of any significant occur- rence in the operating room.


There are basically two types of medical malpractice insurance: occurrence and claims made. Occurrence insurance covers any lawsuits that arise when the physician was covered by the occurrence policy. For example, assume that a physician purchases an occurrence policy for the year 2008 and then discontinues the policy. Even if the lawsuit is filed in 2010, if the event in question occurred in 2008, the policy is still deemed to be in force. However, if the same physician purchased a claims-made policy for 2008, and the law- suit is filed in 2010, he is not covered by that policy. He would be covered only for claims filed in 2008, no matter when the event in question occurred.

Although claims-made insurance is less expensive for the first few years, after several years, the price for claims-made insurance approaches that for occurrence insurance. Finally, if a physician selects claims-made insurance and then leaves town or stops practicing, he will need to purchase what is referred to as tail coverage, which will cover him for all future years, even though he no longer has active malpractice insurance.

O. William Brown, MD, JD, is Chief, Division of Vascular Surgery, William Beaumont Hospital, in Royal Oak, Michigan; Interim Chief, Division of Surgery, Wayne State University Harper, in Detroit; and Adjunct Professor of Law, Michigan State University, College of Law, in East Lansing, Michigan. He may be reached at (248) 433-0881; owbmd@aol.com.


Contact Info

For advertising rates and opportunities, contact:
Craig McChesney

Stephen Hoerst

Charles Philip

About Endovascular Today

Endovascular Today is a publication dedicated to bringing you comprehensive coverage of all the latest technology, techniques, and developments in the endovascular field. Our Editorial Advisory Board is composed of the top endovascular specialists, including interventional cardiologists, interventional radiologists, vascular surgeons, neurologists, and vascular medicine practitioners, and our publication is read by an audience of more than 22,000 members of the endovascular community.