WHAT IS
MEDICAL MALPRACTICE?
Persons may
disagree as to the definition of the term medical malpractice. However, in a medical
malpractice case, the only definition that matters is the one the jury hears from the
court. This article will familiarize physicians with the law that governs the trial of a
medical malpractice case in California.
An
understanding of the law will help physicians understand how their attorneys will defend
then at trial and what the jury will be asked by the court to do. A physician’s
understanding of the law will allow him or her to better assist in their defense.
At the trial of
a medical malpractice case, a twelve person jury will hear evidence in the form of
testimony of witnesses and in the form of documents for the jury to review. At the
conclusion of the introduction of evidence, the court will instruct the jury on what the
law is to guide them to a verdict.
Certain jury
instructions are fairly standard and given in most medical malpractice cases. The
following are some of the more commonly used jury instructions in malpractice cases. Other
specially developed instructions may also be given by the court.
1.
Standard of Care
Physicians have
probably heard the term "standard of care". The following instructions, as
highlighted, define what is meant by this term.
The court will
read the following instruction to the jury entitled "Duty of Physician":
A physician,
performing professional services for a patient, owes that patient the following duties of
care:
1. The duty to
have that degree of learning and skill ordinarily possessed by reputable
physicians, practicing in the same or a similar locality and under similar circumstances;
2. The duty
to use the care and skill ordinarily exercised in like cases by reputable members
of the profession practicing in the same or a similar locality under similar
circumstances;
3. The duty
tto use reasonable diligence and his or her best judgment in the exercise of
skill and the application of learning..
4. A failure to
perform any one of these duties is negligence.
Physicians
specializing in particular fields of medicine may have a slightly different kind of
standard of care. This instruction is known as "Duty of Specialist".
It is the
duty of a physician who hold himself or herself out as a specialist in a particular field
of medical, surgical or other healing science, to have the knowledge and skill ordinarily
possessed, and to use the care and skill ordinarily used by reputable specialists
practicing in the same field and in the same or a similar locality and under similar
circumstances.
A failure to
fulfill such duty is negligence.
The jury will
also be instructed that a lack of success is not necessarily malpractice in "Medical
Perfection Not Required".
A physician
is not necessarily negligent because he or she errs in judgment or because his or her
efforts prove unsuccessful. The physician is negligent if the error in judgment or lack of
success is due to a failure to perform any of the duties as defined in these
instructions.
In addition,
the jury will also be instructed in "Alternative Methods of Diagnosis or
Treatment" that:
Where there
is more than one recognized method of diagnosis or treatment, and no one of them is
used exclusively and uniformly by all practitioners of good standing, a physician is not
negligent if, in exercising his or her best judgment, he or she selects one of the
approved methods, which later turns out to be a wrong selection, or one not favored by
certain other practitioners.
In most medical
malpractice cases, the standard of care is determined by testimony from expert witnesses.
In "Medical Negligence - Standard Of Care Determined By Expert Testimony", the
jury will be instructed:
You must
determine the standard of professional learning, skill and care required of the
defendant only from the opinions of the physicians including the defendant who have
testified as expert witnesses as to such standard.
You should
consider each such opinion and should weigh the qualifications of the witness and
the reasons given for the opinion. Give each opinion the weight to which you deem
it entitled.
You must
resolve any conflict in the testimony of the witnesses by weighing each of the opinions
expressed against the others, taking into consideration the reasons given for the opinion,
the facts relied upon by the witness, and the relative credibility, special
knowledge, skill, experience, training and education of the witness.
Your
credibility, as well as that of all of the other parties and witnesses, will be determined
by the jury. To that end, the jury is instructed in "Believability Of Witness"
that:
You are the
sole and exclusive judges of the believability of the witnesses.
In determining
the believability of a witness you may consider any matter that has a tendency in reason
to prove or disprove the truthfulness of the testimony of the witness, including but not
limited to the following:
The demeanor
of the witness while testifying and the manner of testifying; the character of that
testimony; the extent of the capacity of the witness to perceive, to recollect, or to
communicate any matter about the witness testified; the opportunity of the witness to
perceive any matter about which the witness has testified; the character of the witness
for honesty or veracity or their opposites; the existence or nonexistence of a bias,
interest, or other motive; a statement previously made by the witness that is
consistent with the testimony of the witness; the existence or nonexistence of any fact
testified by the witness; the attitude of the witness toward the action in which
testimony has been given by the witness or toward the giving of testimony; and an
admission by the witness of untruthfulness.
2.
Causation
The plaintiff
must also prove that the alleged breach of the standard of care caused the injury, damage,
or loss which resulted in this lawsuit. A physician cannot be liable for any malpractice
if the malpractice did not cause the injury. The issue of causation is addressed by the
court in "Cause – Substantial Factor Test" as follows:
The law
defines cause in its own particular way. A cause of injury, damage, loss or harm is
something that is a substantial factor in bringing about an injury, damage, loss or
harm.
3.
Informed Consent
In many
malpractice cases, the question of whether consent had been given before a particular
medical procedure is undertaken becomes important. In "When Consent To Operation Or
Treatment Is Necessary", the jury instruction states:
It is the
duty of a physician to obtain the consent of a patient before treating or operating on the
patient. Such consent may be express or may be implied from the circumstances.
Another
instruction entitled "Reality Of Consent - Physician's Duty of Disclosure"
states:
Except as
hereinafter explained, it is the duty of the physician to disclose to the patient all
material information to enable the patient to make an informed decision regarding the
proposed operation or treatment.
Material
information is information which the physician knows or should know would be regarded
as significant by a reasonable person in the patient's position when deciding to
accept or reject a recommended medical procedure. To be material a fact must also be one
which is not commonly appreciated.
There is no
duty to make disclosure of risks when the patient requests that he or she not be so
informed or where the procedure is simple and the danger remote and commonly understood to
be remote.
Likewise, there
is no duty to discuss minor risks inherent in common procedures, when such
procedures very seldom result in serious ill effects.
However, when a
procedure inherently involves a known risk of death or serious bodily harm it is the
physician's duty to disclose to the patient the possibility of such outcome and to explain
in lay terms the complications that might possibly occur. The physician or surgeon must
also disclose such additional information as a skilled practitioner of good standing would
provide under the same or similar circumstances.
A physician
has no duty of disclosure beyond that required of physicians of good standing in the same
or similar locality when he or she relied upon facts which would demonstrate to a
reasonable person that the disclosure would so seriously upset the patient that the
patient would not have been able to rationally weigh the risks of refusing to undergo the
recommended treatment.
Even though the
patient has consented to a proposed treatment or operation, the failure of the physician
to inform the patient as stated in this instruction before obtaining such consent is
negligence and renders the physician subject to liability for any injury proximately or
legally resulting from the treatment if a reasonably prudent person in the patient's
position would not have consented to the treatment if he or she had been adequately
informed of all the significant perils.
4.
Conclusion
These are just
some of the more important jury instructions which will be given at the conclusion of
trial. Although the jury will be so instructed by the court, there is no guarantee that
the jury will interpret and follow the instructions in the same manner that the
physician’s attorney will contend that they should.
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