Negligence and Malpractice Claims

There are many areas of the law that have an impact on your plastic surgical practice. Most will include a claim of negligence, which triggers your malpractice insurance. Other claims either strengthen the malpractice claim or add additional claims that may not be covered by your malpractice insurance; all are intended to add additional pressure on you to settle the lawsuit.

Tort law: negligence and malpractice claims

Tort law is the basic area of the law covering negligence and malpractice. There are four requirements of the negligence action. The first is a duty to provide care and responsibility for the acts in question. The second element of a negligence claim is that duty is breached, usually in a sub-standard way or in a way that did not comply with prevailing standards. The third requirement is that the breach – the act or omission -- is directly responsible for whatever damages occur. This is called proximate cause. And the fourth requirement is that the patient suffers damages as the result of the negligent act or omission. The proof and arguments surrounding these four elements comprise a malpractice claim.

Other legal interactions will also involve your testimony establishing these four elements in litigation between others (when your patient is the injured party). In an auto accident, for example, you might be called upon to testify as to the extent of your patient’s injuries, for which you were the treating physician. If you treated the patient, your testimony about the nature and probably cause of your patient’s injuries will help establish both the proximate cause and damages that your patient suffered.

A layperson’s guide to the stages of a malpractice lawsuit

If you are fortunate enough to avoid legal claims by disgruntled or even injured patients, you may never encounter the legal system in the context of a malpractice suit. However, given the high bar of patient expectations created by so much internet marketing, it is likely that at some point a claim will be made against you, whether justified or not. In that case, it is helpful to be familiar with the stages of a typical lawsuit.

Notice of a claim

A malpractice suit begins with a claim of injury and damage caused by you or your employees and agents; these claims are commonly made informally before a lawsuit is filed, as many jurisdictions require that you receive notice of a claim before a lawsuit is filed.

Notice of a claim is usually made by certified mail or by a process server; you and your staff must immediately notify your malpractice carrier, and obtain legal representation in order to timely respond and develop your defense. is usually provided certified for by a delivery service and must be taken seriously. You should secure the patient’s medical records and any other relevant documents; you must not revise or alter a medical record in any way, as it is more likely than not that such actions will come to light and will be devastating to your defense. Obtain copies of the medical record from hospital or surgical facilities as well. Your lawyer (either your own or one assigned by your malpractice carrier will likely interview your employees for their recollection of the patient’s care and treatment. This is an important step to preserve more contemporaneous facts; a lawsuit may take years to resolve, and memories fade, and staff with knowledge of the patient’s treatment may leave your employment, retire or move away. Notes of these recollections should not be kept in the patient’s medical record, which is discoverable by the patient and their attorney.

Your attorney and malpractice carrier will want to review the patient’s medical record and interview you about the circumstances of the patient’s care, and with respect to the claims being made by the patient/plaintiff. You will discuss the matter in great detail, to decide whether you have any risk of liability, and whether a settlement of the claim is the best course of action. If the matter is not settled, it will be necessary to develop a defense strategy, which frequently includes a review of your treatment record by other physicians acting as experts in the matter.

Be sure to follow all rules and guidelines for disclosing the existence of the claim or lawsuit; in addition to notifying your malpractice carrier, you are often required to give notice to the governing medical board and any hospital to which you have admitting privileges.

Filing of the complaint and exchange of information (discovery)

Once a lawsuit is filed, you and your counsel will have a set period of time to answer the complaint, generally 20 or 30 days, depending on the jurisdiction. After litigation is commenced, each party will have numerous opportunities and vehicles by which to obtain documents, information, and testimony concerning the acts or omissions which led to the alleged injury. This process is called discovery; it includes document requests, written questions to which you must respond (interrogatories), requests to admit certain facts, the demand to identify witnesses and staff with knowledge of the procedure performed, and oral testimony in a deposition by you, by witnesses, and by other experts with an opinion as to whether you followed common practices in addressing the medical condition or procedure. All discovery requests require advance notice, giving you and your attorney adequate time to prepare your responses and your testimony.

Both after the complaint is filed and during the discovery process, parties can bring motions before the court to try and dismiss some (or all) of the claims, to limit the types of damages claimed, and to guide the discovery permitted during the lawsuit.

Once discovery is completed, expert discovery begins: both sides present expert testimony as to whether you exercised reasonable judgment and followed appropriate procedures in providing care to your patient.

Once that process has concluded, either party (usually the defendant doctor) can seek to have the court enter judgment based on the undisputed (and admitted) facts of the case (summary judgment). If that motion is granted, the case is over; if not, then the matter is scheduled for trial.

Trial of a malpractice case

The typical malpractice trial takes between one and two weeks, including all of the witness testimony, testimony on damages, expert testimony, and various trial motions and arguments, as well as (in some cases) drafting and arguments over jury instructions and jury deliberations.

The court system is crowded and overworked, which is one reason cases take so long to get to trial. As a result, courts often require that the parties participate in a mediation to try and settle the case. Even if this process has been unsuccessful before, it is often much more productive when both parties are prepared for trial, and are familiar with the strengths and weaknesses of their case. If the case is not settled, it will be set for trial. Either the court or the jury will make a determination as to the facts, and the court will instruct them on what the law requires in order to prevail on a claim or defense. Every verdict or judgment is subject to post-trial motions, and sometimes one of the parties will appeal the judgment because of a legal error. Factual findings that are adverse to you are rarely the basis for an appeal.

Concluding thoughts

In preparing your defense, it is imperative to set aside the time to meet with your counsel as necessary, to prepare for your deposition, to provide information to your counsel and during the discovery process, and to be present for trial. Of course litigation is disruptive to your practice, but the consequences of not taking it seriously are often severe. Doctors that lose a malpractice case subject themselves not only to that particular judgment, but it must be reported to your state medical board. And because the trial outcome is public information, your practice might well be subjected to other suits by similarly situated patients, and your practice marketing will be significantly impacted. An adverse outcome may also have an impact on your malpractice insurance (which you will already consider an expensive necessity).

It is essential that you communicate all information known by you to your counsel, particularly any information which could damage your case or your defense. Competent attorneys can prepare for the plaintiff’s use of adverse information, but it is extremely detrimental to your defense if such information comes out during trial, and is a surprise to your own counsel.

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