“IT’S ELEMENTARY, DOCTOR,” WHEN IT COMES TO LIABILITY
Dear Valued Physician Client:
Most physicians will experience a lawsuit at some time during their career.1 According to the Medscape Malpractice Report of 2017, more than 50% of physicians have been named in a lawsuit. Physicians in the surgery and ob/gyn specialties were sued most often, followed by those in the specialties of ENT, urology, orthopedics, plastics, radiology, ED, GI and anesthesiology. Almost a third of the cases were settled, while another third spent long hours in court or mediation.2
To avoid risk, it helps to understand what is necessary for a medical malpractice lawsuit to be successful.
There are four elements of liability that must be proved for the plaintiff (patient) to recover damages:3
- A professional duty is owed to the patient.
- Duty is breached: The provider fails to conform to the relevant standard of care (depends on state).
- Damages: There must be physical or emotional loss to provide the basis for a claim.
- The breach must be the cause of the injury.
The plaintiff (patient) must prove that all of the four elements exist to prove negligence. The defendant (provider) must prove that one or more of the four elements does not exist.
Risk can be reduced by controlling the first two elements of liability: duty to the patient and a breach of that duty. While offering the best possible care for your patients is your priority, thinking about these elements of liability may help you prevent or minimize risk to protect yourself.
RESOURCES:
1Medscape Malpractice Report 2015: Why Most Doctors Get Sued; December 9, 2015. https://www.medscape.com/ features/slideshow/public/malpractice-report-2015 Accessed September 15, 2019.
2 Medscape Malpractice Report 2017: https://www.medscape.com/slideshow/2017-primary-care-malpractice- report-6009318
3 G. Eric Nielson & Associates, LLC.website: https://ericnielson.com/four-elements-medical-malpractice
The information contained herein is offered as insurance industry guidance and provided as an overview of current market risks and available coverages and is intended for discussion purposes only. This publication is not intended to offer legal advice or client-specific risk management advice. Any description of insurance coverages is not meant to interpret specific coverages that your company may already have in place or that may be generally available. General insurance descriptions contained herein do not include complete insurance policy definitions, terms and/or conditions, and should not be relied on for coverage interpretation. Actual insurance policies must always be consulted for full coverage details and analysis.
Insurance brokerage and related services to be provided by Arthur J. Gallagher Risk Management Services, Inc. (License No. 0D69293) and/or its affiliate Arthur J. Gallagher & Co. Insurance Brokers of California, Inc. (License No. 0726293).</sup2<>