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The Little Law Book

by Miriam Kurtzig Freedman, J.D
Illustrations by Daphne San Jose

More Key Concepts in Civil and Criminal Law

CHAPTER 11

Malpractice

Malpractice is a combination of tort and contract ('K') laws. Cases deal with all types of professionals: doctors, lawyers, engineers, architects, stockbrokers, and so on. Malpractice drawing

Dr. Smith operated on Mr. Jones to improve a persistent backache. Jones's condition worsened....
Jones now wonders whether Dr. Smith's treatment constitutes malpractice. To find out he should ask the following questions:

  1. Duty of Due Care:
    ASK: Did Dr. Smith have a duty to care for Mr. Jones reasonably? With due care?
    This duty of due care exists in most patient/doctor situations. But, at an accident site, for example, if Dr. Smith stops to give assistance to Jones (not his patient), he cannot be sued for malpractice in most states. He is protected by the Good Samaritan doctrine, which limits suits against doctors to cases of gross negligence.
    IF THERE WAS DUTY OF CARE GO TO NEXT STEP IF NOT ... STOP (There is no malpractice.)
  2. Breach of Duty:
    ASK: Did Dr. Smith fail to practice medicine as other doctors in his specialty do?
    Or Was his conduct below the standard of his profession?
    Or Did he fail to get the necessary 'informed consent' before the treatment?
    Dr. Smith has a duty to practice medicine according to the standards of his profession, as other doctors in his specialty do, and to treat patients according to the scope of their informed consent.
    If Jones is unsatisfied with the treatment results, malpractice is not necessarily involved. Dr. Smith may have practiced standard medicine. No tort may have been committed. Jones might be able to sue on a contract theory: if the results were less than promised.
    IF THERE WAS A BREACH OF DUTY...GO TO NEXT STEP,IF NOT... STOP (There is no malpractice.)
  3. Causation:
    ASK: Did Dr. I Smith cause Mr. Jones's harm? (Remember, this is a tort question.)
    If Dr. Smith misdiagnosed Jones's condition and treated it wrong, AND if Jones could have improved with the right treatment, Dr. Smith may have caused the harm. If, on the other hand, Jonesís condition was untreatable, then the ìwrongî treatment did not cause the harm. It may have happened anyway.
    If a patient claims he did not give an ìinformed consentî to treatment, he must also prove that he would have declined treatment if he'd had more information. If it is proven that he would have consented even with additional information, then the lack of an ìinformed consentî did not cause the harm.
    IF THERE WAS CAUSATION . . . GO TO NEXT STEP IF NOT ... STOP (There is no malpractice.)
  4. The Doctor's Defenses:
    ASK: Does Dr. Smith have any valid defenses?
    For example, the Good Samaritan doctrine, the immunity of government doctors, and the emergency situation when the doctor does not have the time to get an 'informed consent.'
    IF THERE ARE VALID DEFENSES...THERE MAY NOT BE MALPRACTICE.
    IF THERE ARE NO VALID DEFENSES. . .THERE MAY BE A MALPRACTICE CLAIM.

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