Medical Malpractice

Doctors and hospitals slip up – but it may not be malpractice.

In legal terms, medical malpractice consists of any professional misconduct or unreasonable lack of skill by a physician in the performance of his professional duties. A physician may be guilty of malpractice when he fails to perform a procedure with the level of skill which would be expected of what the law calls "an ordinary physician." Depending on the state, the performance of a doctor charged with malpractice may be compared to doctors in the same geographic area, or who practice in the same medical specialty, or who practice anywhere in the United States.

Illegal or immoral conduct by a physician, such as pressuring a patient into having sexual relations, also constitutes malpractice. And failing to obtain informed consent before treating a patient is another form of medical malpractice.

Hospitals may also be charged with malpractice when they fail to provide the care that it should be reasonably expected to provide when compared to other hospitals.

Rising malpractice claims and the subsequent increases in malpractice insurance premiums have led many physicians to proceed with excessive caution before suggesting or implementing any medical procedure. Batteries of expensive tests may be ordered, many of which are unnecessary, and all of which ultimately increase the cost of medical care to everyone. In addition, some areas of medicine such as obstetrics and gynecology, have become so burdened by malpractice claims that many practitioners have chosen to abandon these fields of practice entirely. This also results in higher medical costs to consumers, since those doctors who continue to practice in these fields face less competition. And when competition decreases, prices invariably increase.

To help understand what medical malpractice is, it's helpful to understand what kinds of actions do not constitute malpractice.

First, the fact that medical treatment or a surgical procedure doesn't cure an illness or improve your condition doesn't necessarily mean that the physician is guilty of malpractice. Many medical conditions defy treatment in spite of a doctor's best efforts. For example, doctors tend to treat cases of hypertension, or high blood pressure, with prescription medication and recommended changes in the patient's diet. But some cases of hypertension don't respond to these standard treatments. Provided that your doctor used accepted medical procedures and used the level of skill in providing them that an ordinary physician would be expected to use, no malpractice has been committed.

Second, even if a treatment makes you feel worse than you did before it was administered, your doctor may not be guilty of malpractice. Every patient who undergoes surgery faces risks of complications, infection, or even death. Every patient who takes a prescribed medicine runs the risk of side effects. But as long as the doctor explained the risks and the patient gave informed consent to the treatment, no malpractice has occurred.

So what does constitute medical malpractice? Here are some examples:

• Prescribing drug dosages in excess of those recommended by the manufacturer for the condition being treated.

• Prescribing drugs or utilizing equipment which has not been approved by the federal Food & Drug Administration (FDA).

• Misdiagnosis that occurs because of the doctor's failure to follow standard procedures. For example, a doctor failed to diagnose a skull fracture in a patient who had suffered a serious fall from a bicycle when he sent the patient home without first ordering x-rays. The patient's condition deteriorated, and he died several days later. Because the doctor did not follow standard medical procedures by ordering x-rays, he was guilty of malpractice.

• The failure of hospital nursing staff to follow the doctor's prescribed course of treatment. If the nurse on duty fails to give prescribed medication according to the doctor's orders, or fails to change surgical dressings as required, the nurse, the nurse's supervisor and the hospital may all be charged with malpractice.

Not all medical treatments, no matter how skillfully performed, will be successful. Patients may have waited too long to seek medical attention, or they may not respond as would be expected under normal circumstances. No doctor can guarantee that he or she can return a patient to good health. But the failure to restore a patient's health is not in itself evidence of malpractice.

If you believe your doctor or the hospital where you were treated is guilty of malpractice, you don't need to rush off to a lawyer right away. Instead, get in touch with your state's Board of Medical Examiners (you can get the telephone number from directory assistance in your state capital, or from the capital's telephone directory, and ask it for information about how to file a complaint about the treatment you received. The Board will forward you the appropriate forms to fill out, or put you in touch with the agency that investigates such complaints.

After you fill out and return your complaint form, it will be investigated by a "peer review board" consisting of other doctors. A hearing may be held at which you and your doctor may be given the opportunity to be heard. If the board's investigation indicates that your doctor failed to observe the standards of an ordinary physician, you have a good chance of winning a malpractice case.

Unfortunately, because these boards are made up of other doctors, questions have been raised about just how thoroughly they investigate complaints brought before them, and how often they let doctors get away with improper behavior.

If you aren't satisfied with the results of a review board investigation, you can still consider filing a malpractice lawsuit. This is one of those instances when you really can't do-it-yourself, and you will probably need to meet with an attorney who specializes in medical malpractice cases. Initial consultations with these attorneys are usually free, which means that you can receive a pretty good idea of how valid your complaint is at no cost. And attorneys who handle medical malpractice cases take them on a contingent fee basis, which means that they receive a portion of any settlement or judgment they obtain on your behalf, but receive no fees otherwise. However, you are responsible for court costs and expenses related to your lawsuit.