As State Laws Change, Clinicians Need Medical Malpractice Legal Representation

Updated on November 17, 2023

Patients who become plaintiffs through pursuing medical malpractice litigation against a clinician have traditionally been required to demonstrate, to a reasonable medical probability, that the clinician’s alleged negligence produced their injury. In recent years, however, the prevailing standard has shifted in two dozen states. Now, in some jurisdictions, the plaintiff may recover damages through demonstrating that improper care prevented their achievement of a more favorable clinical outcome. This shift in the courts places additional pressure on clinicians to secure trusted legal counsel.

Risks and Requirements

The legal system permeates virtually every facet of healthcare delivery in the United States. Depending upon the circumstances and allegations that may be involved, practitioners may face civil lawsuits, administrative investigations, or even criminal prosecution at some point in their careers. Adverse findings may result in substantial monetary judgments, sanctions, limitations on the ability to practice medicine, regulatory penalties, damage to reputation, exclusion from CMS conditions of participation, removal from private third-party payer reimbursement networks, and possible incarceration. Traditionally, states have undertaken the responsibility of governing the healthcare professions, most notably medicine, dentistry, and nursing. Over the past several decades, the federal government has encroached on that authority and instituted a comprehensive system of laws and mandates. Understandably, clinicians frequently express concern regarding the burdens imposed by the plethora of statutory requirements on their routine operations, especially the enhanced danger of professional liability claims and violations of the many compliance obligations. An analysis of those issues may help practitioners mitigate unfavorable risks going forward.

Four Key Elements to Prevail

Terminology and definitions are critical to appreciating our system of jurisprudence. In the context of insurance malpractice parlance, a claim is often described as a demand for the payment of money damages incurred because of a professional services incident. Ordinarily, submission of a claim to a clinician triggers the individual’s coverage, and the carrier must be promptly notified of the occurrence to help guarantee a timely and proper investigation and defense. Should the aggrieved person retain counsel and file a lawsuit, the parties engage in a variety of discovery tools, such as requests to produce documents, written questions known as interrogatories, and depositions involving vigorous oral cross-examination under oath. 

Ultimately, a person seeking money must prove by competent relevant evidence four key elements to prevail: 

  1. There was a doctor-patient relationship when the care and treatment in issue were rendered, thereby creating a fiduciary obligation to comport with the prevailing community standard. 
  2. The provider failed, either by omission or commission, to deliver services consistent with what similarly trained clinicians would have done under the same or similar circumstances.
  3. The negligence caused a compensable injury.
  4. Damages recognized in the jurisdiction where the matter is pending were sustained that are ordinarily denoted as “general damages” such as pain, suffering, and harm related to the loss of enjoyment of life and “economic damages,” which includes past, present, and future out-of-pocket losses. 

Many cases result in a favorable judgment, arbitration award, or dismissal in favor of the healthcare defendant.

Duty of Care: New Patients and Curbside Consultations

To determine whether the duty of due care exists, many jurisdictions require adequate evidence to be presented that demonstrates that an ordinary, reasonable person would conclude under the circumstances that a doctor-patient relationship had been created. 

Consider the possible pitfalls at the outset of any encounter with someone seeking treatment. For example, providers must take great care by proper notice on their webpage, in the conditions of treatment, and in the physician-patient service agreement to clarify that merely completing and returning preliminary insurance paperwork or a personal healthcare questionnaire does not generate the requisite duty to treat. Individuals should be unequivocally notified that they will be advised in writing once the practice has decided that the individual is a suitable fit and will thereafter be accepted as a patient. 

Similarly, informal physician discussions, often referred to as “curbside” consultations, pose another possible pitfall for clinicians. Informal impromptu conversations have historically played an integral part of the collegial practice of medicine. Expectations between both providers must be clearly identified at the beginning of the dialogue. The specialist should avoid definitive diagnosis or treatment recommendations absent a proper consultation request: The practitioner seeking guidance in a curbside format may record the conversation in a progress note for later reference, whereas the one offering the specialty opinion will ordinarily not make any entry into a chart, and years later in the event of litigation, will have no recollection of the encounter. 

Changes to Prevailing Standards

The third component of a prima facie professional liability claim involves proving a causative relationship between the inappropriate treatment and the harm claimed to have been sustained. Healthcare providers are strongly encouraged to know the applicable law in the jurisdiction where they practice. Traditionally, the common law required patients to demonstrate that the alleged negligence produced the injury to a reasonable medical probability. In recent years, nearly two dozen states have significantly lowered the prevailing standard to permit the plaintiff to recover damages by merely demonstrating that the improper care denied the individual of the opportunity to be cured or to achieve a more favorable clinical outcome, depending upon the law of the jurisdiction. 

Clinicians are also strongly urged to routinely consult with their healthcare corporate or personal counsel to help ensure that the many compliance requirements established by congressional legislation, such as HIPAA, the Americans with Disabilities Act, and the Civil Rights Act of 1964 (and subsequent related statutes), as well as regulations protecting individuals with limited English proficiency, among many others, are being scrupulously followed by the practice. The United States Department of Health and Human Services, through the Office for Civil Rights, diligently investigates and enforces these federal laws and may impose a variety of significant sanctions where violations are found.

Rich Cahill
Richard Cahill, JD
Vice President and Associate General Counsel at The Doctors Company, Part of TDC Group

Richard Cahill, JD, is Vice President and Associate General Counsel of The Doctors Company, Part of TDC Group.