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Tort Law: The Rules of Medical Malpractice

See Also:

Medical Malpractice Lawsuits: How are plaintiffs successful?

            A licensed physician attends four years of medical school and completes up to seven years of residency training to learn how to effectively and safely treat patients. Not only is the educational process rigorous, but state medical boards closely oversee physicians’ conduct to prevent harm to patients.  

When, despite these systemic protections, patients are harmed, one recourse for an injured patient is to file a medical malpractice claim.

An injured patient must prove the following four elements to be successful in a medical malpractice claim:

(1)  That the doctor owed the patient a duty of care;

(2)  That the doctor breached the duty to provide adequate care owed to the patient;

(3)  That the doctor’s action caused the patient’s injury; and

(4)  That the patient suffered an injury that resulted in damages.[1]

In this presentation, we’ll analyze these elements. 

Doctor-Patient Relationship

            The first element an injured patient must prove is that the physician owed a duty to provide adequate care to the patient. This is established by the existence of a doctor-patient relationship.

These relationships aren’t necessarily formal, as they don’t require contracts.[2] In one case, Ortiz v. Glusman, an appeals court reasoned that a physician doesn’t even need to have physical contact with the patient for a relationship to be established and for the physician to owe the patient a duty of care. For example, if an ill individual calls a physician on the phone and talks to him about her symptoms and the physician then recommends a course of treatment, a doctor-patient relationship has been established because he has taken affirmative action to treat her illness and prescribe a course of treatment.  

Breach of Duty

Once a doctor-patient relationship exists, the second element is that her doctor breached his duty to provide adequate care by failing to exercise the degree of care, skill, and learning expected of a reasonably prudent doctor in the profession to which he belongs.[3]

State laws dictate how courts will determine whether a physician failed to exercise the degree of care, skill and learning expected of a reasonably prudent doctor. Courts in many jurisdictions will determine whether one doctor’s actions demonstrated the necessary care and skill by examining the conduct of other physicians practicing within the borders of that state. Furthermore, several states provide that physicians must demonstrate the skills of a comparable specialist rather than those of general practitioners.[4]

Both the plaintiff and defendant may rely on expert testimony. Experts describe what physicians typically do when treating patients and can shed light on whether one physician’s conduct was atypical. In one case, Valencia v. United States, a doctor successfully defended a medical malpractice lawsuit by proving that he did not breach a duty owed to a patient by only requiring him to undergo one x-ray for lung pains and coughing. During his defense, he relied on experts who testified that almost all physicians who treat patients complaining of these symptoms will only prescribe one x-ray.


            Third, the patient must establish a causal link between the doctor’s conduct and the patient’s resulting injury. A medical malpractice case requires both “cause in fact,” which means that the injury would not have occurred “but for” the doctor’s negligence.  and “proximate cause,” meaning that the injury is a foreseeable consequence of the negligent act.

In Bramlette v. Charter Medical-Columbia, a hospital admitted a patient who said he suffered from anxiety and was having suicidal thoughts. Immediately after admission, doctors placed him on suicide precautions status, but after an initial consult with a psychiatrist, he was transferred to a less stringent active observation status, allowing him some freedom of movement to go off hospital grounds. During one such visit, he committed suicide.

The patient’s widow sued the psychiatrist for medical malpractice and successfully established that the psychiatrist’s actions were both the cause-in-fact and proximate cause of her husband’s death. She established cause-in-fact by proving that her husband would not have died “but for” the psychiatrist’s diagnosis and decision to transfer him to a less closely monitored status. She also successfully established proximate cause because suicide is a foreseeable consequence of not actively monitoring a person who exhibits these tendencies.[5]


            Finally, a patient in a medical malpractice case must prove that her injury resulted in economic or physical harm.[6]

There are three types of damage awards available in a medical malpractice case:

(1) compensatory damages for economic loss, such as past and future medical costs, out-of-pocket expenses related to the injury, and lost wages;

(2) non-economic damages for “pain and suffering;” or

(3) punitive damages, which are designed to punish the offending doctor and dissuade other doctors from making similar mistakes.[7]

            Compensatory damages, such as lost wages, can be easily calculated, but non-economic damages are more difficult to calculate because of their uncertain nature. For example, how can a hiker who permanently loses her ability to hike and scale mountains due to an orthopedist’s inadequate treatment of her knee injury receive compensation for her not being able to partake in her favorite pastime?[8] While non-economic damages may be difficult to calculate, they account for a significant portion of the patients’ injury-related damages. Some states, such as California, limit a patient’s ability to recover non-economic damages.[9]

Punitive damages, though available, are rarely awarded in medical malpractice cases. This could be explained by the nature of punitive damages, which are designed to punish a wrongdoer’s action. Courts are reluctant to impose punitive damages in most medical malpractice cases because even when a doctor harms his patient, he intended to help.[10]


Medical malpractice cases are usually based on negligence. The plaintiff typically argues that her doctor did not act with the appropriate standard of care when treating her. While not every mistake or unfavorable outcome will allow an injured plaintiff to establish the required elements for a medical malpractice case, a doctor will be held legally responsible when he fails to exercise an appropriate standard of care, and such failure causes damage to the patient for whom he was responsible.  



[2] St. John v. Pope, 901 S.W.2d 420, 1995 Tex. LEXIS 74, 38 Tex. Sup. J. 723

[3] A.R.S. § 12-563

[4] Toth v. Comm. Hosp. at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368 (1968).

[5] Bramlette v. Charter Med.-Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990)

[6] B. Sonny Bal “An Introduction to Medical Malpractice in the United States.” Clinical Orthopaedics and Related Research 467.2 (2009) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/

[7] Williams, Alan, “The Cure for What Ails: A Realistic Remedy for the Medical Malpractice ‘Crisis’”, 23 Stan. L. & Pol'y Rev 477 (2012)

[9] Williams, Alan, “The Cure for What Ails: A Realistic Remedy for the Medical Malpractice ‘Crisis’”, 23 Stan. L. & Pol'y Rev 477 (2012)

[10] Beitz, Edward, “Punitive Damages in Medical Negligence Cases: The Bark versus the Bite,” retrieved from http://www.whiteandwilliams.com/media/alert/18_TortSourceBeitzArticle.pdf