Elements of malpractice: Duty comes first

Key Points

In order for a plaintiff to be successful in a malpractice action against a physician, four things must be established: (1) the physician owed a duty to a patient; (2) the physician breached that duty; (3) the breach was the proximate cause of the patient's injury; and (4) damages were sustained by the patient. This column-the first of three on the elements of malpractice (we'll cover elements 3 and 4 in one article)-centers on legal duty.

For a doctor to owe a duty to a patient, a physician-patient relationship has to exist. That relationship is either an express contract, in which the patient requests medical services and the doctor agrees to supply them, or an implied contract. In an express contract, the terms are spelled out, either verbally or in writing. With an implied contract, the agreement is assumed, based on the circumstances and behavior of both parties: A patient comes into your office for a physical exam or treatment, say, or enters the hospital, where you treat him or perform a test as part of an evaluation.

The unseen, off-site, or unfamiliar patient

Good Samaritan actions are usually an exception. In most states, you don't have a duty to someone you stop to help, and you'll be liable for damages only if you commit gross negligence or leave the individual worse off than she was before you intervened.

In certain circumstances, you have a duty to nonpatients you see for screening examinations-including workers' compensation physicals, insurance exams, and employment physicals. If you injure such a patient or render negligent advice on which the patient relies, you could be held liable. You're less likely to create a duty, however, if you limit the exam to the elements specified in the screening and don't offer medical advice or treatment. If you suspect a problem, tell the patient to see his own physician, and document the interaction and the limited nature of the exam.

Duty-stemming from a viable physician-patient relationship-is the first element in a malpractice case. If a plaintiff can't prove that it existed at the time of the alleged injury, the lawsuit will invariably be dismissed. Once duty is established, however, a physician defendant, with the help of an attorney, must show that he fulfilled it.

What constitutes a breach of duty-the second essential element in a malpractice claim-will be the focus of the July 18 "Malpractice Consult."

Lee Johnson, who can be contacted at lj@bestweb.net
, is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues. This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
.