An Introduction to Medical Negligence Litigation: Anatomy of a Lawsuit and Risk Reduction Strategies

Abstract

Medical negligence litigation poses substantial economic and emotional concerns for healthcare providers, including infectious disease specialists. Even in relatively low risk specialties such as infectious disease, most physicians will face at least one malpractice claim over the course of a career. Understanding the legal process and the anatomy of a medical negligence lawsuit empowers providers to reduce litigation risk and improve the likelihood of a favorable outcome if a claim arises. A claim for medical negligence requires proof by a preponderance of the evidence that the physician breached the standard of care, proximately causing injuries and damages. Effective risk reduction strategies include maintaining accurate and contemporaneous documentation, communicating clearly with patients and colleagues, engaging in ongoing continuing medical education, and prioritizing personal well-being to mitigate burnout. By integrating these preventive practices, physicians can reduce the likelihood of litigation, or increase the likelihood of a successful defense if litigation cannot be prevented.

Introduction

Medical negligence litigation represents a significant concern for physicians and other health care providers, posing both economic and emotional challenges. Even a single lawsuit can lead to financial losses, anxiety, and reputational damage that can be difficult to overcome.

Over the course of a career, there is a strong likelihood that a medical care provider will be named as a defendant in at least one lawsuit alleging medical negligence. The likelihood of being sued is highly variable by state and by medical specialty. Not surprisingly, risk increases with additional years of practice. Across all jurisdictions and medical specialties, nearly half of physicians age 55 or older have been sued at least once [1]. By the age of 65, 75% of physicians, even in low-risk specialties, have been sued for medical negligence [2]. Therefore, although infectious disease is not typically characterized as a high-risk specialty, infectious disease providers are far from immune from medical negligence claims.

The concerns most often discussed are the financial consequences of medical negligence litigation. Medical care providers in private practice typically have limits on liability insurance coverage. Jury verdicts can often exceed the available insurance coverage, resulting in personal liability exposure for the provider.

Financial consequences also impact the practice of medicine in other significant ways. The costs incurred in defending medical negligence claims, regardless of outcome, have been estimated to be nearly USD $3 billion annually [3]. These costs are incurred despite the fact that many cases brought are without merit, evidenced by the fact that they are either dismissed prior to trial or result in a defense verdict, sometimes after years of litigation expenses have mounted. These costs have many negative consequences, including increasing malpractice insurance rates that can be prohibitive to the practice of medicine, and the practice of defensive medicine that drives up the cost of health care for everyone.

Perhaps more concerning is the emotional and psychological impact on medical care providers. As noted above, the possibility of a jury verdict in excess of a provider’s available insurance coverage poses a risk of financial ruin. Beyond those financial considerations, most providers have great difficulty dealing with allegations that they were negligent in their profession, causing harm to a patient they were trying to help. Because litigation is a slow-moving process in many jurisdictions, the anxiety, frustration, and reputational concern caused by these factors can go on for years, negatively impacting the provider’s professional and personal life. Indeed, many providers are driven out of the practice altogether because of these stressors.

In order to manage the financial and psychological challenges posed by medical negligence litigation, it is helpful to understand the anatomy of a medical negligence lawsuit. Providers can then learn to implement risk reduction strategies that reduce the likelihood of litigation, or increase the likelihood of successfully defending a medical negligence lawsuit if one cannot be prevented.

Anatomy of a Medical Negligence Lawsuit

Claims for medical negligence in the United States are primarily governed by each state’s tort law. Although specific language may vary from state to state, to establish a claim of medical negligence, a plaintiff must typically prove three elements:

1. Breach of the “standard of care,” i.e., professional negligence
2. Proximate cause
3. Damages

Standard of Care

A breach of the standard of care is typically defined as the failure to exercise “reasonable care” under the circumstances of a particular case. More specifically, in cases brought against an infectious disease provider, a plaintiff must prove that the defendant medical care provider failed to possess and use the knowledge, skill, and care ordinarily used by a reasonably careful infectious disease provider. The law does not define how a reasonably careful provider would act under the circumstances of any specific case. In cases decided by a jury, the jury makes that determination [4].

Although every case alleging medical negligence is different, there are some common themes. Notably, standard of care allegations against infectious disease providers rarely include the failure to make appropriate antibiotic choices based on the available data; infectious disease physicians are well-versed in choosing the appropriate antibiotics and rarely make even an arguable mistake in that regard. Instead, allegations most often involve a failure to timely diagnose and/or treat an infection in ways other than those regarding antibiotic choices. Such allegations may include:

• Failure to timely initiate antibiotic therapy
• Failure to recommend or order laboratory studies
• Failure to timely recommend or order imaging studies
• Failure to timely recommend or order consultation from other medical specialties
• Failure to communicate with providers in other specialties to coordinate a plan of care

For example, a common issue in medical negligence litigation is decubitus ulcer prevention and management. Infectious disease providers do not assume responsibility for preventing skin breakdown or managing the skin breakdown that has already occurred. Nevertheless, an infectious disease provider, even if consulted for an unrelated issue, is often accused of violating the standard of care by failing to prevent or properly treat skin breakdown. Common criticisms include failing to examine the decubitus ulcer, failing to order pressure ulcer prevention measures, failing to initiate antibiotic therapy, and/or failing to recommend a wound care or surgical consultation.

As another example, in a patient who has signs and symptoms suggestive of an intra-abdominal source for infection, the infectious disease consultant will order appropriate antibiotics given the data available at the time. Criticisms usually stem from not doing more, such as ordering advanced imaging of the abdomen, ordering a general surgery consultation, and/or effectively communicating with other involved services.

Proximate Cause

In addition to proving a breach of the standard of care, a plaintiff must also prove that the provider’s negligence “proximately caused” a plaintiff’s injuries and damages. In many states, “proximate cause” means that the negligence of the provider was “a cause” of the plaintiff’s damages. In other words, a contributing cause, even if minimal and one of many, can be the basis for liability. In Illinois, a typical proximate cause jury instruction may read as follows:

When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause, resulting in the injury.

If you decide that the defendant was negligent and that his/her negligence was a proximate cause of injury to the plaintiff, it is not a defense that something or someone else may also have been a cause of the injury. However, if you decide that the defendant’s conduct was not a proximate cause of the plaintiff’s injury, then your verdict should be for the defendant. [5]

“Proximate cause” is a critical issue, since it represents a separate element that a plaintiff must establish. Put another way, even if there is a proven standard of care violation, there must be a causal link between the standard of care violation and the claimed injuries and damages. Conversely, a standard of care violation that does not cause injury cannot be the basis for liability in a medical negligence lawsuit.

To return to our decubitus ulcer example: A plaintiff must establish that the allegedly negligent care, not other factors outside the infectious disease provider’s control, caused the decubitus ulcer to develop or prevented the decubitus ulcer from healing. If the decubitus ulcer had developed or had not healed, even if the infectious disease provider had given the orders that the plaintiff claims were required (i.e., initiation of antibiotics, imaging, wound care consultation, or surgical consultation), there is no basis for liability.

As another example: In our intra-abdominal infection case, if plaintiffs were to level criticisms concerning failure to order additional imaging, or failure to order a general surgery consultation, or a complaint suggests that communicating with other services was suboptimal, there is still no basis for liability if doing those things would not have resolved the infection.

However, in most states, it can be difficult to prevail on the issue of proximate cause, since that element requires only that the standard of care violation be “a cause” (not “the cause”) of the claimed injury.

For example, consider a patient who develops complications following a general surgery procedure such as a small bowel resection. Recognized complications of that type of surgery may include injury to surrounding structures and anastomotic breakdown. Either of those complications could lead to infection, sepsis, and death. If that were to occur, the surgeon would typically be the primary responsible party, as he or she “caused” the intra-abdominal injury through allegedly negligent surgical technique. However, if an infectious disease provider is also involved in the case as a consultant, a plaintiff may allege that the infectious disease provider also provided negligent care. It might be argued that the infectious disease provider failed to perform an adequate abdominal examination, failed to timely order antibiotics, failed to order appropriate laboratory studies, failed to order advanced imaging, and/or failed to communicate an appropriate level of concern to the surgeon. Even if a jury were to find that the surgeon’s negligence was the primary cause of the patient’s injuries, if the infectious disease provider was even a minor contributor to the injury, liability attaches for any verdict. This is true even if the surgeon is 99% responsible for the outcome, while the infectious disease provider is 1% responsible. Regardless, the plaintiff could then execute a verdict against the infectious disease physician.

Expert Testimony

In most cases, a breach of the standard of care as well as proximate cause must be established through expert testimony of a qualified witness [6]. If the court determines that the plaintiff’s expert witnesses are qualified by education, training, and experience, the experts are permitted to testify to their opinions regarding the standard of care and proximate cause. Because opinions can vary, this often results in a “battle of the experts” with diametrically opposed conclusions that the jury must resolve.

Medical organizations have published guidelines to establish ethical obligations of a physician who agrees to act as an expert witness in a medical negligence case. Those organizations include the American Medical Association and the Infectious Diseases Society of America, both of which encourage physicians to participate in the litigation process, but caution that they must do so ethically. The published guidelines generally provide, in part, that a physician acting as an expert witness must:

• Accurately represent their qualifications, and testify only in areas in which they have appropriate training and recent, substantive experience and knowledge.
• Testify honestly. Evaluate cases objectively and provide an objective independent opinion.
• Ensure that the testimony reflects current scientific thought and standards of care that have gained acceptance among peers.
• Not allow expert testimony to be influenced by financial compensation. Physicians must not accept compensation that is contingent on the outcome of litigation [7,8].

Unfortunately, guidelines published by the AMA, IDSA, and other professional organizations provide little protection from medical negligence litigation. In practice, because expert testimony on standard of care and proximate cause issues is a matter of opinion, a plaintiff’s attorneys can frequently find an “expert witness” to support cases that most infectious disease physicians would regard as frivolous. Further, there is almost never a consequence to the “expert witness” for offering opinion testimony that might be considered in violation of the published guidelines.

Damages

If a plaintiff is able to convince a jury that a defendant provider has breached the standard of care, and that the breach was a proximate cause of injuries and damages, the jury will then be asked to determine the amount of an award of damages. Typically, the jury is instructed that the damages awarded must “reasonably and fairly” compensate the plaintiff. The law gives no further guidance as to how the jury is to determine what is “reasonable and fair” [9].

Depending on the case, the jury may award economic and/or non-economic damages. Economic damages may include past and future medical expenses and past and future lost earnings. Non-economic damages may include pain and suffering, disability/loss of normal life, and disfigurement. In a case alleging wrongful death, non-economic damages may also include the “loss of society” suffered by a decedent’s heirs [9].

In a majority of states, legislatures have enacted some form of protection from excessive damages awards. The most common protection is caps on certain elements of damages, which exist in 33 states [8]. Additional protections exist in 8 states in the form of Patient Compensation Funds, which provide excess financial coverage for health care providers above their insurance coverage limits [9]. In addition, 13 states have medical review or screening panels that are designed to evaluate the merits of a case before filing, with the goal of reducing frivolous lawsuits.

However, in a significant number of states, including Illinois, there are no such protections. There are no statutory caps on any form of damages, no Patient Compensation Fund, and no medical review panel [10,11]. As a result, juries in such states are free to award whatever damages they deem “reasonable and fair.” It is unusual for a trial court or appellate court to order a post-verdict reduction in the damages awarded.

Burden of Proof

For each element of a medical negligence claim, the plaintiff bears the burden of proof. In a civil case, the burden of proof is lower than in a criminal case. Whereas a criminal case requires the state to prove a defendant’s guilt “beyond a reasonable doubt,” in a civil case alleging medical negligence, the plaintiff must only prove each required element by “a preponderance of the evidence.” Put another way, the medical negligence plaintiff must prove that each element is “more probably true than not true,” i.e., a greater than 50% probability of being true [12].

Trial by Jury

Almost all cases alleging medical negligence that go to trial will be decided by a jury. Courts and commentators frequently claim that plaintiffs as well as defendants have their cases decided by “a jury of their peers.” In reality, however, this is not an accurate characterization. A jury in a medical negligence case will very infrequently include a medical care provider with a foundation of knowledge concerning the medical issues that the jury is asked to decide. Most often, the plaintiff’s attorney will excuse any medical professional in the jury pool, claiming an inherent “bias” toward protecting a colleague. Therefore, most medical negligence lawsuits are decided by 12 jurors with no medical knowledge or experience.

Risk Reduction Strategies

Understanding the elements of a medical negligence case, medical care providers can employ certain strategies in an effort to prevent a lawsuit from being filed, or to prevail in the event a lawsuit cannot be prevented. Unfortunately, there is nothing a provider can do to guarantee prevention or a successful outcome. However, there are certain practices that can be implemented to significantly reduce the risk of an unfavorable litigation outcome.

1. High-Quality Care

The best prevention strategy is, of course, to provide high-quality medical care, meeting or exceeding the standard of care. Unfortunately, even the best medical care is not a guarantee that litigation will be prevented. Poor outcomes are a sometimes unavoidable part of the practice of medicine. Litigation is often outcome-driven using a retrospective analysis, meaning that plaintiffs and their attorneys start with the outcome, then work backward to find decisions made prospectively by providers that can be criticized using the benefit of hindsight.

2. Documentation

A key tool to reduce risk is good documentation. Careful documentation can be the difference between success and failure in litigation. In the era of electronic medical records, it is increasingly difficult to ensure that each consultation report and progress note is entirely accurate and complete. Many note templates are auto-populated with certain data, some of which may be outdated or no longer relevant. Given the detail that must be included in each note, the practice of copying and pasting has, in many cases, become a necessity to allow adequate time for direct patient care. Understanding these obstacles, risk can be reduced in the following ways:

• Prepare your note contemporaneously or as soon as possible. Outdated documentation or documentation after an adverse event occurs is viewed with skepticism.
• Review your note before signing to make sure it is as accurate as possible. Inaccurate or incomplete documentation, including typographical errors, even if ultimately irrelevant to the case, are can result in a poor impression.
• Separate and identify changes/updates from prior notes by dating and/or bolding new information within each section of a note (e.g., HPI/Subjective, Physical Exam/Objective, Assessment, Plan).
• Unless you are certain, avoid documentation implying certainty regarding your diagnosis. If uncertain, use words like “probably” or “possibly.” Understand, consistent with the above discussion of the burden of proof, that there is an important legal distinction in the characterization of a diagnosis as probable versus possible.
• Document the reasoning for your diagnosis or differential diagnosis. Infectious disease cases often involve complex differential diagnoses. Not every possible cause can be fully investigated and ruled out. Explain why you are pursuing one or more diagnoses.
• If you are not ordering or recommending a diagnostic or treatment option for your diagnosis or something in your differential diagnosis, explain why not (e.g., the possible diagnosis is highly unlikely, the results will not alter the treatment plan, the risks outweigh the potential benefits).
• Do not draw definitive causation conclusions unless you are reasonably certain after careful analysis. If there are multiple possible causes or you are uncertain of the cause for a diagnosis, make that clear.

3. Patient Communication

Another important way to reduce risk is effective communication with patients and family members. It is understandable that time constraints and other factors can make it difficult to effectively communicate with each patient and their family members. However, research consistently shows that effective communication significantly reduces the risk of medical negligence litigation [13–15]. Conversely, patients who feel you are rushed and unsympathetic to their circumstances are more likely to place blame and seek legal counsel. In short, a good “bedside manner” goes a long way. This is particularly important when seeing patients at higher risk for a poor outcome or when you are working with unreasonable and hostile patients/family members. Be professional and patient, as these are the types of patients most likely to seek legal advice if there is an unfortunate outcome.

4. Communication with Colleagues

For younger providers in particular, discussion and coordination with senior infectious disease physicians should be encouraged. Do not be afraid to ask questions of or seek advice from more experienced providers before acting. Take advantage of their experience.

For providers of any experience level, discuss complex issues with physicians in other medical specialties.  Many diagnoses benefit from input across multiple medical specialties.  Reaching a consensus and shared decision-making among different medical specialties supports a unified defense that the standard of care was met.

5. Continuing Medical Education

Take seriously your continuing medical education (CME) obligations. It is easy to view CME as another obligation taking time away from your practice and personal life. However, the practice of medicine evolves rapidly. There is much to be gained from a thoughtful and targeted approach to CME. Research and identify CME opportunities in infectious disease where you have questions or concerns.

6. Provider Self-Care

Burnout among medical care providers is a significant risk factor for medical negligence litigation. A better-rested provider is more likely to provide high-quality care and make good medical decisions. Providers should attempt to maintain a reasonable work–life balance, recognizing that the quality of care they provide is linked with their own physical and mental health.

Conclusions

The current landscape of medical negligence litigation may seem to present a frightening picture for medical care providers practicing in many states, including Illinois. However, the news is not all bad. Nationwide, approximately 65% of cases are dismissed prior to trial, without payment. Only about 6% of medical negligence cases are resolved by a trial, and the defendant medical care provider prevails in the majority of those trials [1].

Nevertheless, the ever-present threat of medical negligence litigation can be a constant source of anxiety for medical care providers. It affects how and where medical care providers choose to practice. Even with the provision of high-quality care, most providers will be accused of medical negligence at least once in their careers. Therefore, it is important to understand the legal process. Providers can then better protect themselves by following risk reduction strategies that lower the likelihood of being named as a defendant in a case alleging medical negligence, or that can help in the successful defense of a case if a lawsuit cannot be prevented.

Funding

This research received no external funding.

Conflicts of Interest

The author declares no conflicts of interest.

References

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