Medical Malpractice and Negligence

• Duty — a physician–patient relationship existed, creating an obligation of care.
• Dereliction — the care fell below the standard of care, meaning what a reasonably prudent physician in the same specialty would have done in similar circumstances. It is not a standard of perfection, and a bad outcome alone is not dereliction.
• Damages — the patient suffered a real injury. A deviation from the standard that harms no one is not actionable.
• Direct causation — the breach actually caused the injury, not merely preceded it.
• Related concepts: res ipsa loquitur, where the injury itself implies negligence (a retained surgical instrument); vicarious liability for the acts of supervised staff; and the distinction between negligence and battery, the latter arising when a procedure is performed without any consent at all.
• Malpractice is not the same as misconduct or error. Most errors are not negligent, and most adverse outcomes are not errors.

The legal frame

• Tort, not crime: malpractice is a civil action, so the plaintiff must prove each element by a preponderance of the evidence (more likely than not), not "beyond a reasonable doubt." Criminal charges against physicians are rare and require intent or recklessness, not simple carelessness.
• Standard of care: defined by what a reasonably prudent physician of the same specialty would do, and established in court almost exclusively through expert testimony. Most U.S. jurisdictions have replaced the old locality rule with a national standard, reflecting national board certification and guidelines. Clinical practice guidelines (e.g., ACC/AHA, ADA Standards of Care, USPSTF) are evidence of the standard but are not automatically dispositive.
• Causation has two halves: cause-in-fact (the "but-for" test — but for the breach, would the injury have occurred?) and proximate cause (the harm was a foreseeable consequence). A breach that merely precedes an unrelated bad outcome fails causation.
• Damages are the remedy, categorized as economic (medical costs, lost earnings), non-economic (pain and suffering, often capped by state statute), and rarely punitive, which require willful or reckless conduct rather than ordinary negligence.

Doctrines that shift the burden

• Res ipsa loquitur: requires that the injury does not ordinarily occur absent negligence, that the instrumentality was under the defendant's control, and that the patient did not contribute. It can substitute for expert testimony (retained sponge, wrong-site surgery).
• Respondeat superior: an employer or supervising attending is vicariously liable for the negligent acts of employees and trainees acting within the scope of duties. The old captain of the ship doctrine extending this to all operating-room personnel has been largely abandoned.
• Informed consent failures are litigated as negligence. Most states now apply a reasonable patient (materiality) standard rather than a reasonable-physician standard. Performing a procedure with no consent at all is battery, an intentional tort.
• Statute of limitations: begins at injury, but the discovery rule tolls it until the harm is or should have been discovered; clocks are typically tolled for minors.

• Stem 1 — dereliction without damages: a hospitalist writes for a drug to which the chart lists an allergy; the nurse catches it and the patient never receives it. There is a clear deviation from the standard of care, but no injury, so no actionable claim. The correct answer is that the damages element is missing. The common distractor is "the physician is liable because the order was clearly below the standard." This case is still a reportable near-miss under Joint Commission patient-safety expectations and should be disclosed and analyzed, but reporting duty and legal liability are separate questions.
• Stem 2 — no duty: a physician gives informal hallway advice about a patient he has never seen or charted on. Absent a physician–patient relationship, there is generally no duty, and the curbside consultant is usually not liable. Similarly, a physician who stops at a roadside collision is shielded by state Good Samaritan statutes when aid is voluntary and uncompensated — but those statutes do not protect gross negligence, and they do not apply to in-hospital care where a duty already exists.
• Stem 3 — causation fails: a delayed chest radiograph in a patient who then dies of a massive pulmonary embolism. The delay is a deviation, but if the film would not have changed the outcome, the but-for test is not met.
• **Stem 4 — *res ipsa***: a laparotomy sponge is found on postoperative imaging. The injury does not occur without negligence and the field was under surgical control, so no expert witness is strictly required.

• A bad outcome is not negligence: known complications of a properly performed procedure, disclosed in advance, defeat the dereliction element. Examiners love the stem where the care was correct and the patient still did poorly.
• All four Ds or nothing: the most frequently tested miss is a real deviation from the standard with no resulting injury — no damages, no claim.
• **Burden of proof is *preponderance of the evidence***, not "beyond a reasonable doubt." That criminal standard is the classic distractor.
• No consent at all = battery (intentional tort); inadequate disclosure of material risks = negligence. Extending a procedure beyond what was consented to, absent an emergency, is battery.
• Retained foreign body, wrong-site surgery, burn from a device under the surgeon's control → res ipsa loquitur; expert testimony may be dispensed with. These are also Joint Commission sentinel events requiring root-cause analysis.
• Supervising physicians are vicariously liable for residents, students, and employed staff under respondeat superior; independent contractors and physicians outside the supervisory chain generally are not.
• Disclose the error — the AMA Code of Medical Ethics requires honest, prompt disclosure of harm to the patient, and the AHRQ CANDOR framework supports early communication and resolution. "Do not tell the patient" and "tell only risk management" are never correct.
• Many states have apology statutes making expressions of sympathy inadmissible; scope varies, so the exam answer is still to disclose.
• Malpractice payments made on a practitioner's behalf are reported to the National Practitioner Data Bank under the Health Care Quality Improvement Act, as are clinical privilege restrictions of extended duration. Being sued is not itself reportable; a payment is.
• Distractor to avoid: a physician's duty arises from an established relationship — recognize stems where no relationship, and therefore no duty, ever formed.