What is the term used to identify the omission of doing something that a reasonable person would do guided by the considerations that ordinarily regulate human affairs?

Tort law: negligence, malpractice

Tort law is the basic area of the law covering negligence and malpractice. There are four requirements of the negligence action. The first area is a duty to provide care and acts in question. The second is that duty is breached, usually in a sub-standard way. The third requirement is that the breach is directly responsible for whatever damages occur. This is called proximate cause. And the fourth requirement is that there are damages as the result of the prior three requirements. The proof and arguments surrounding these four elements comprise a malpractice claim. Other legal interactions will also involve your testimony establishing these four elements. An example would be a dog bite resulting in a lawsuit. You have surgically repaired the laceration and now must testify that this injury is from the dog and the damages that you describe are directly the result of the bite. While this may appear ridiculous, as these questions are posed to you, you can now see that the three elements of this tort case can be established. The first element of that duty might be to protect people from the dog.

Clinical negligence

Negligence is a civil claim where damage or loss has arisen as a result of an alleged breach of professional duty, such that the standard of care was not, on the balance of probabilities, that which could be reasonably expected.

Of the components of negligence, duty is the simplest: all doctors have aduty of care to their patients. Whether a doctor has discharged their professional duty adequately is determined by expert opinion on the standards that can reasonably be expected and an individual’s conduct in relation to those standards. If doctors have acted in a way that is consistent with a reasonable body of their peers and their actions or omissions withstand logical analysis, they are likely to meet the expected standards of care. Lack of experience is not taken into account in legal determinations of negligence.

The most common reason for a clinical negligence action to fail iscausation. For example, the alleged harm may have occurred against the background of a complex medical condition or course of treatment, making it difficult to establish the actual cause.

Clinical negligence remains relatively rare and undue fear of litigation can lead to defensive and poor practice. All doctors make mistakes and these do not necessarily constitute negligence or indicate incompetence. Inherent in the definition of incompetence is time: that is, on-going review of a doctor’s practice to see whether there are patterns of error or repeated failure to learn from error. Regulatory bodies and medical defence organizations require doctors to be honest about their mistakes and to apologize, remembering that to do so is not necessarily an admission of negligence. Such honesty and humility, aside from its inherent moral value, have been shown to reduce the prospect of patient complaints or litigation. Being open is recognized as good practice internationally, and examples of an open approach in the USA, Australia and Singapore have actually reduced the costs of complaints.

Abstract

Medical negligence legal actions require evidence of a causal association between the alleged act of negligence and the injury outcome that is deemed “more probable than not (>50% probable).” Very often the alternative explanation for the adverse outcome, aside from the alleged act of negligence, is the natural course of the disease process for which the treatment was sought. Ultimately, most causal disputes in medical negligence cases can be distilled to the quantification and comparison of competing risks. In this chapter the methods for estimating a comparative risk ratio in a medical negligence action are presented and illustrated with four case examples of the forensic epidemiologic investigation of serious injury following an alleged act of negligence.

Medical negligence

Inadvertent adverse events are common in clinical practice, but few of these result in any legal action. Accusations of negligence often imply that a doctor-patient relationship has broken down. For the doctor, such an action is distressing and sometimes professionally damaging, even when shown to be unjustified.

In considering whether there has been negligence, it is necessary to establish breach of professional duty (whether the standard of care afforded the patient fell below what was expected). The standard expected is that of the ordinary skilled practitioner in the field in question, practising in the circumstances pertaining. It is not that of the greatest expert in the land. Thus, in assessing possible negligence, a court will need to establish:

what the ordinary practice is

that the doctor did not follow this practice

that the doctor undertook a course of clinical management that no ordinarily skilled doctor in that specialty would have undertaken if acting with ordinary care.

A mistake in diagnosis is not necessarily negligent, and the test of the standard of care applicable to the ordinary practitioner in the specialty will be applied by the court in considering this.

Doctors are expected to keep up to date in their expertise by continuing medical education, and this is an aspect that is relevant to this judgement. Doctors in training are expected, by and large, to exercise an appropriate standard of care, and no patient should expect a lower standard of care simply because they are cared for by a junior doctor with less experience. This would clearly be wrong. It is imperative, therefore, that in treating a patient, advice and help should be sought from senior colleagues whenever relevant.

If negligence has occurred, the legal process will go on to attempt to establish what harm resulted from the negligence and that the harm would not have occurred if the negligent act had not been committed.

20.5.3 Negligence

Negligence is the most common allegation (cause of action) in medical practice cases. It is legally defined as the omission of something that a reasonable person, guided by ordinary considerations of someone who regulates human affairs, would do; or the doing of something that a reasonable and prudent person would not do. Therefore, negligence is a violation of the duty to use care. It arises when injury results from the failure of the wrongdoer (“tortfeasor”) to exercise due care. The four elements required to establish a prima facie case for negligence are duty, breach, causation, and compensable injury.

Negligence

Negligence is failing to prevent loss/harm/injury when there was a duty owed to the plaintiff and reasonable and due care would have prevented the injury or damages from occurring. Negligence actions can easily be lodged against an organization. In some cases, managers can be held personally liable for their negligence. In essence, negligence consists of five elements:

The existence of a duty as established via law or contract.

A failure to perform that duty.

Harm or injury to a party to whom the duty was owed.

The harm was reasonably foreseeable.

The harm was caused by the failure to perform the duty.

Negligence suits are based on the principle of respondeat superior (“let the master answer”), meaning that employers can be held liable for actions of their employees committed within the scope of employment. Scope of employment is generally defined by:

Time: was the employee on-duty when the action occurred?

Place: was the employee on employer’s property at time of offense?

Purpose: was the act committed in furtherance of the employer’s interests?

Negligence suits can be filed for a variety of reasons. Suits filed for failing to take reasonable and due care to prevent a foreseeable injury that the employer had a duty to prevent might occur in any of the following situations:

Selection: hiring someone without properly screening them and placing them in a position of trust. Maintenance employees with keys to all facilities, cashiers or accountants with access to significant amounts of cash, instructional aides with access to children, or information technology (IT) specialists with access to sensitive data, must all be properly vetted and screened for criminal history or prior behavior that might make hiring such individuals a risk.

Retention: continuing the employment of someone with whom the defendant knows or should have known has dangerous proclivities.

Entrustment: entrusting a dangerous item to another when the employer knew (or should have known) the individual would use it in such a way as to cause harm to others. Examples might include giving a delivery driver with a history of alcoholism the keys to a delivery truck, or arming a security officer with a history of reckless behavior that involved weapons or use of force.

Supervision: not properly supervising personnel in situations where someone suffers injury due to the failure. This could include an inadequate span of control or an absence of supervisory checks.

Instruction: failing to properly direct a subordinate so that a third party or the subordinate suffers harm.

Training: failing to properly train someone to perform their job duties with the result that an injury is caused.

Negligence

Negligence is defined as “the failure to use such care as a reasonably prudent and careful person would use under similar circumstances” (Black, 1990, p. 1032). In a professional context, it is “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.… [I]t is characterized chiefly by inadvertence, thoughtlessness, inattention, and the like” (Black, 1990, p. 1032). Consider Case Example 8-1 involving the director of the Tulsa Police Department Crime Laboratory.

CASE EXAMPLE 8-1:

MARK BOESE, DIRECTOR, TULSA POLICE DEPARTMENT CRIME LABORATORY

Mark Boese was former director of the Tulsa Police Department Crime Laboratory in Oklahoma. Mr. Boese had been employed as a civilian by the Tulsa Police Department since 1999. He was ultimately fired for negligence and incompetence, as reported in Marshall (2010):

An investigation revealed that he “failed to perform his duties as lab director and firearms examiner and failed to properly supervise,” [Officer Jason] Willingham said.

…In a personnel order from Interim Chief Chuck Jordan, he is accused of numerous violations of both city and Tulsa Police Department rules, regulations and policies.

…Among the allegations against Boese is that he failed to comply with repeated instructions to “properly locate and secure evidence as required by policy” beginning in March, the order states. After he was placed on administrative leave, numerous improperly handled and incomplete files were found in Boese’s office, along with some evidentiary items, the personnel order states.

“Your inaction and tardiness caused inefficiency in the DNA and Firearms Sections,” Jordan wrote in the order. Boese also is accused of failing to update a firearms manual to meet international lab requirements despite having been directed to do so several times. He is accused of trying to coerce a subordinate to complete that job responsibility, the record states.

In another situation, Boese examined a firearm that was involved in a homicide in September 2008, yet “due to negligence, inefficiency or incompetence you could not locate the case file containing your notes and did not complete a written report of your finding until October 9, 2009,” the record states.

The findings were submitted after the discovery cutoff in the homicide case following repeated pleas from the District Attorney’s Office, it states. “Your behavior as outlined in this document evinces a clear and incontrovertible pattern and practice of incompetence, inefficiency, and gross neglect of duty,” Jordan wrote in the order. “For many years you have ignored polices and rules well-known to you.”

On suspension for about two weeks prior to his firing, Mr. Boese had been suspended by the Tulsa Police Department at least once before. In 2007, he was reprimanded for making an ethnic slur toward Hispanics and using derogatory language regarding other Tulsa Police employees. In that case, he was suspended for ten days without pay and required to attend sensitivity training.

According to Mr. Boese’s attorney, his termination was unfounded and he intended to appeal. However, those efforts proved unsuccessful. In 2012, Mr. Boese passed away at the age of 51.

Ultimately, the Tulsa Police Department Crime Laboratory received accreditation under the direction of another lab employee, Tara Valouch (see Figure 8-1).

It is also negligent for an agency to retain an incompetent, unethical, or fraudulent examiner. Obviously, the reason is that doing so can incur future liability and might willfully contribute to miscarriages of justice. However, the agency may not be given a choice. Consider Case Example 8-2 involving a criminalist from the Canton-Stark County Crime Laboratory.

CASE EXAMPLE 8-2:

MICHAEL SHORT, CRIMINALIST, CANTON-STARK COUNTY CRIME LABORATORY

From 2012 to early 2013, the Canton-Stark County Crime Laboratory has suffered one scandal after the next related to poor or improper management.

First, it was the crime lab director: “the city lowered the job qualifications for the director of the Canton-Stark County Crime Lab and then hand-picked a retired county sheriff’s investigator for the post without advertising the vacancy” (Rink, 2013a). The retired police officer, Rick Perez, had no science or management qualifications to speak of. He was subsequently forced to resign the position under significant pressure from the mayor’s office and the city council (Rink, 2013b). They had been kept in the dark by Canton Safety Director Thomas Ream and Canton Police Chief Bruce Lawver, who jointly orchestrated and initially defended the decision.

Then there is the ongoing Michael Short scandal (see Figure 8-2). In May of 2012, Canton-Stark County Crime Lab criminalist Michael Short was fired for violations related to incompetence and falsifying reports. With respect to poor job performance, Mr. Short is reported to have failed to notice a bullet hole in a garment during examination. However, this was the least of it, as reported in Balint (2012a):

The falsification violation stems from Short’s gunshot-related analysis in January in a felonious assault case.…

In paperwork, Short used the term, “using the firearm,” which investigators say indicated the gun had been test-fired when it had not.

Short said that the description of “using the firearm” did not mean he test-fired the weapon, according to Ream’s report. Short told a police investigator that there was not a code in the computer to specify that he didn’t discharge the gun.

Short explained that his results —in determining the distance from which the gun was fired—were gained through past experience with firearms and ammunition.

An accreditation program manager told an investigator that basing lab results on experience without conducting the examination is not an acceptable practice when the items that are to be tested are available.

In addition, a crime lab employee told an investigator that he returned reports to Short to be done correctly regarding the gun-related analysis and the test-firing of a firearm. The reports, which were not corrected or administratively reviewed, were placed in a bin to be sent back to the submitting law-enforcement agency, according to police records.

However, subsequent to an appeal, Mr. Short was reinstated, as reported in Balint (2012b): “The Canton Civil Service Commission recently ruled that Michael Short should be reinstated, but he was given a 120-day suspension without pay.” The reason was that they felt Mr. Short had not intentionally falsified the report, but rather he had simply made an administrative error. As further reported in Balint (2012b), this decision was greatly influenced by character testimony from the prosecutor’s office and the judiciary3:

At the civil service hearing late last month, Assistant Stark County Prosecutor Dennis Barr and Stark County Common Pleas Court Judge Lee Sinclair were called as witnesses by Tscholl, and both officials complimented the quality of Short’s work, Sliman said. The testimony was influential in the commission’s decision.…

In March of 2013, Mr. Short was fired by the crime lab once more. The initial termination had triggered a more extensive internal review of his casework, from 2007 through June of 2012. The results of that audit led to the second firing, and new accusations reported in Rink (2013c):

Among the new accusations the city made against Short is that he never tested two pieces of clothing for gunshot residue in the murder trial [of] Ryan L. Hamrick of West Virginia, even though he testified to a jury that he had. Hamrick was convicted in 2011 of fatally shooting Demeris Tillman, 30, of East Cleveland, on Nov. 15, 2009, while the men were traveling from Ohio to West Virginia.

“It appears he did not do any chemical examination of the items to identify gunshot residue which would be necessary to conclude that gunshot residue existed or not due to the fact the victim was found laying in a creek for four days and the clothing was extremely soiled,” according to the Internal Affairs report. “…His testimony in Common Pleas Court … is unsatisfactory at best.”

Short also is accused of filing 147 false reports. More than 100 of the reports showed he entered ballistics information into the National Integrated Ballistic Information Network, but no evidence could be found that he actually did. He’s also accused of falsely reporting 36 times that he test fired cartridges from firearms.

In other cases, Short failed to complete reports, and label and seal evidence. The Internal Affairs report found that Short did not adhere to the crime lab’s analytical procedures or quality assurance standards.

The case has been reviewed by the Ohio Attorney General’s Office and the Canton City Law Department.

As of this writing, Mr. Short is appealing his latest termination to the Canton Civil Service Commission.

Inpatient Care

Medical negligence claims relating to harm done in an inpatient environment most commonly relate to failure to protect a child from adverse events in that setting. Seclusion and restraint are potentially risky activities, and must always be demonstrably in the patients’ best interests. Inpatient units need to have explicit and conservative policies for the implementation, audit, and evaluation of restraint. Because it is common for admitted children to have been abused, and for this to affect their behavior, there is an increased risk of assault by other patients and even staff on inpatient units. Note that the treating psychiatrist will be responsible for the child’s well-being even if care is primarily carried out by junior medical and/or nursing staff. Should an inpatient unit arrive at a wrong diagnosis and implement inappropriate and potentially harmful treatment, the nominated child psychiatrist could be held responsible even if he/she has not been actively involved in the inpatient setting.

Where one patient assaults another, action might be brought on behalf of the assaulted child against the psychiatrist managing the child who perpetrated the alleged assault. For such litigation to be successful, lawyers for the assaulted child are likely to need access to the medical record of the assailant. Courts will not always accede to such requests.

CONCLUSION

In a negligence claim, the plaintiff must establish a duty, breach of that duty, causation, and damages. In a medical negligence claim, the physician has a duty to meet the standard of care. Although not absolute, guidelines established by professional associations provide a jury with strong evidence as to the standard of care. Informed consent cannot shield the physician from a negligence claim, but an informed patient, having been told about the potential risks of a given procedure, may be less inclined to initiate a medical negligence action.

This chapter has introduced some of the clinical scenarios that are most likely to result in a medical malpractice claim against a urologist and has offered certain strategies to avoid litigation. Although a urologist may treat certain unique anatomic and physiologic conditions, the urologist shares many of the same malpractice issues with the other surgical specialists discussed in this Handbook.