This is a duty owed to foreseeable plaintiffs in the zone of danger, defined as the amount of care that is expected from a reasonable prudent person under such circumstances. For physicians, this is based on a national standard. For a specialist in pain medicine, duty will be based on the national standard expected of a board-certified pain physician.

Duties of care are presumed where there is assumption of risk, such as with the treating physician, statutory obligation as based on statutory law or regulations, contractual obligation such as concierge medicine, existing relationship such as that between a patient and a physician even outside the hospital, and creation of a peril such as when a physician tries to help and makes the situation worse. Overall, while there is no general obligation to come to the aid of another, trying to help and in so doing creating more problems leads to a duty to care under creation of a peril.

This is when the above duty is not met under the expected circumstance. For example, if the expected standard of care fell short of the national standard.

Causation

This is based on two parts, which include actual causation and proximate causation. Actual causation is based on the “but for” test, if there is a single defendant whereby but for the act of that defendant, there will not be harm that ensues. In a situation where there are possible multiple defendants, the “substantial factor” test is used in terms of effects leading to the harm. In a situation where this is unascertainable, there is a “shift of burden of proof” test, which shifts the burden of proof to the defendant. This shift of burden occurs where multiple physicians are caring for a patient and a mishap occurs in which there is difficulty in finding a substantial factor for the mishap. The burden shifts to each of the defendants to prove that each individually was not culpable.

Proximate causation is the direct or indirect cause of the harm that the patient experienced. A direct cause is a foreseeable cause when the expected duty is breached. An indirect cause is a consequence that is an intervening cause. For example, an indirect cause occurs if an epidural injection by a pain physician leads to an epidural abscess from negligent nonuse of an aseptic technique, which subsequently leads to the need for surgical decompression, which in turn leads to a spinal cord injury. The interventional pain physician may be liable for the spinal cord injury because the surgical decompression is an intervening action. The intervening cause test does not apply if such act is due to an intentional tort or a crime.

Damages: There has to be harm in the process of the breach of the duty of care for medical negligence to occur.