Negligence

Negligence is the failure to exercise the care that a reasonable or prudent person would under similar circumstances. Negligence includes malpractice and many other liability perils. Malpractice is the most common among practitioners. The elements of negligence are Duty, Breach, Proximate Cause, and Damage.

The overall malpractice characteristics include:

• Failure to provide the required standard of care commensurate with your particular licensed professional occupation;
• This failure results in damage, injury, or death.
• Any healthcare professional can be sued for malpractice, no matter how trivial the lawsuit complaint appears.

A patient’s lawyer can define malpractice subjectively. A lawsuit can merely refer to the patient’s perception of wrongdoing without supporting factual evidence. If the patient merely “feels” anything relating to the scope of treatment or interaction with the healthcare professional provider was carried out incorrectly or not carried out at all, it is sufficient grounds to support a lawsuit.

The following are the required elements of negligence and are described in the context of treatment that festers into a malpractice lawsuit. The plaintiff (patient who brings the lawsuit against you through counsel) must prove each element in the lawsuit. In any event and regardless of culpability, the defendant (you or your insurance carrier insuring you), must pay the legal fees to dispute the charges and defend you until the lawsuit ends, either at trial or through a settlement.

DUTY
This is created when the healthcare professional agrees to accept the patient and establishes the course of treatment with the professional relationship between the two parties. The duty is to create, maintain, and deliver professional services within the occupationally defined Standard of Care commensurate with that specific healthcare professional’s occupation.

BREACH
This is the healthcare professional’s failure, or as often referred to in lawsuits as “dereliction of duty”, to meet the standard of care and to apply the appropriate diagnostic, preventative, and therapeutic measures.

PROXIMATE CAUSE
This specifically links wrongful actions and/or non-actions arising from the healthcare professional directly connected to the outcome or resulting change. The key element is “causation”, whereby the damage arose directly from the professional’s practice behavior.

In other words, “But For” the action or inaction of the healthcare professional, there would not have been the damage. There is a distinction with the word cause. “Proximate Cause” is a legal connection of blame whereby the professional has some probability of contributory negligence to the damage arising from the duty breach.

This is debatable throughout the lawsuit and is subjective. Often times when indemnity settlements are reached, a portion of the damage is blamed on the healthcare professional, and damage claims are paid in that proportion plus legal fees. “Cause in Fact” is a stricter measure, and factually links the duty breach committed by the healthcare professional to the patient damage. This is the “smoking gun” analogy where there is absolutely no doubt of cause, and who is responsible for the damages.

DAMAGE
This is the list of harms to the patient. These include economic (hard) and non-economic (soft) categories. They can be physical, emotional, and/or financial. The main categories are Medical such as lost wages, treatment costs, and even other losses including first party and third party costs; and Pain & Suffering causing social and psychological harm.

Negligence lawsuits have two expensive components: indemnity and legal fees to defend. They do not have to be practice or therapy related. Damages arising from negligence can be your patient’s stolen handbag in your office or in a hotel conference room in which you are conducting a session, or a stolen laptop or cell phone that has your patient phone numbers. Even a fire in your office causing property damage to your landlord, a slip & fall by a visitor to your office, or a dog bite in your office makes you potentially negligent.