Jason B. Turowski and Scott Manaker

Origins of Malpractice

Malpractice litigation transcends courtrooms, juries, and money; it embodies several social goals. These goals include compensating patients injured from negligence, attempting to make them whole again; exacting corrective justice, aspiring to bear the costs of reparation; and deterring unsafe practices by creating economic incentives for precaution, as it would appear less expensive to avoid mistakes than to make them.

In reality, malpractice suits do not achieve these laudable social goals, as only some patients injured from negligence receive compensation. Approximately 70% of malpractice cases resolve before ever going to trial, and only 30% of cases close with payment to plaintiffs. Claims are brought against both negligent and non-negligent physicians, and acting negligently does not guarantee a claim will be brought as most errors do not precipitate a subsequent malpractice suit. A deterrent effect of malpractice remains unproven. Instead, many posit that malpractice suits may prompt defensive medicine that increases health care costs. Others perceive that, rightly or wrongly, the current tort system is fair to plaintiffs and emphasizes individual accountability for both the physician and the patient. The system overall seems inconsistent in distributing compensation and exacting justice, with inherent inefficiencies resulting from high administrative costs.

The doctor has a duty or a responsibility to a patient to perform a particular service, when treating sepsis, providing mechanical ventilation, or managing routine critical care. A provider may fail to meet the standard of care for a particular service as a result of an error or by gross negligence. Medical malpractice requires an injury derived from a deviation in the applicable standard of care.

For intensivists, the standard could be to relay critical information in a timely fashion to the patient (the family or health care proxy); educate the patient or his or her surrogate on what the critical information means; offer viable options to address the imminent health care issue; and explain the risks, benefits, and alternatives of therapy. The applicable standard of care may be a local/regional or national definition, based on individual state laws and regulations. For specialists, such as intensivists, a national standard is typical.

The standard of care is defined as a quality of care that would be expected of an ordinary or reasonable physician in the same specialty in a similar circumstance, but not necessarily in the same locality. Trainees such as residents and fellows are not held to the same standard as attending physicians in their respective specialties. Although jurisdictions vary, in general, attendings are indirectly liable for the negligence of residents working under their supervision, and directly liable for inadequate supervision of residents who commit error. A greater than 50% probability (“more likely than not”) defines negligence and the medical standard of care, a lower threshold of proof than the “beyond a reasonable doubt” (< 90% to 95%) standard used in criminal litigation. Furthermore, the defendant physician owes a duty of care to the plaintiff patient. A malpractice allegation contends that the defendant breached that duty by failing to adhere to the standard of care, resulting in injury to the plaintiff.

Why Are Intensivists Sued?

Poor communication between a physician and a patient or patient’s family can frequently lead to litigation (Box 108.1). Most medical malpractice cases do not involve actual negligence. Beckman et al reviewed 45 plaintiffs’ depositions, selected randomly from 67 lawsuits in 1985-1987, all against a large city hospital. The decision to litigate was most often associated with a perceived lack of caring and lack of availability on the part of the practitioner being sued. Additional factors also contribute to the decision by a plaintiff to proceed with a malpractice suit (Figure 108.1).

Medical Malpractice and the Chest Physician

Physicians from medical disciplines that perform the most procedures generally have the most medical malpractice claims. The concept of res ipsa loquitur, “the thing speaks for itself,” means that the plaintiff must prove that an injury could not have occurred absent negligence, could not have been caused by the plaintiff, and was under the defendant’s control. Fulfilling this concept then burdens the defendant to prove that negligence did not occur. An adverse event or outcome following a procedure is enough evidence to convince a jury that negligence has occurred. Five major allegations (Box 108.2) in malpractice suits that generally apply to most physicians, including nonproceduralists, certainly apply to intensivists.

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