Medicolegal Considerations

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February 15, 2016
Edward Smith

Medicolegal Considerations

Burn Trauma

I’m Ed Smith, a Sacramento Personal Injury Lawyer. The ultimate dispute mechanism in our civilized society is the court trial.  Unfortunately, the abrasive aspects of the adversary system often evoke angry, confused, and indignant responses from the physician who is not trained in the rules of the system or familiar with its mechanisms.  These responses are uniformly counterproductive.  It is important, therefore, to maintain a posture of equanimity when confronted by the unexpected or unfamiliar.

In litigation in a malpractice suit, the plaintiff must show each of the following four elements:

  1. The physician had a duty to the patient
  2. The physician breached the applicable standard of care (negligence)
  3. The negligent act or omission was the cause of the damage
  4. There was, in fact, damage

Trauma is often first treated in the emergency room of a general hospital.  The clear duty of the initial examiner is to triage, or sort, the various problems presented.  In general, there is a three category system:

  • Emergency—injuries that threaten life and limb if not treated immediately.  Typically, eye injuries are not in this group unless associated with multiple trauma to the head or chest injuries with immediate threat to the respiratory or cardiovascular system.
  • Urgent—injuries that require prompt but not immediate care.  Eye injuries fall in this category.
  • Nonurgent—injuries whose care can be delayed for some period of time without adverse effect.  These include chronic conditions or conditions that do not need medical care.

It is the responsibility of the hospital or institution to set the standards and guidelines for the person acting as the triage officer.

If the rules or regulations of the hospital or its department of ophthalmology require referral to a specialist under specific circumstances and such referral is not made, a violation of these rules, regulations, and standards may be introduced as evidence of negligence.

Even in the absence of specific written rules, regulations, and guidelines, the emergency room physician or any physician is duty bound to refer the patient to a specialist if the patient’s condition requires a degree of knowledge, skill, or training that is not found with the physician’s level of training.

The national standards state that a specialist should be able to see the patient within thirty minutes of the time called in the case of a thoracic surgeon.  In one such case, the surgeon could not be found for an hour and twenty minutes and the patient died despite surgery.  The court held that the jury should have been allowed to determine whether the hospital or the physician should be held responsible for the failure of the on-call system.

Judgmental errors may be the basis for liability if there is a failure to comply with recognized medical standards that would be exercised by similar physicians under similar circumstances.  Such liability may be found upon failure to visit the patient promptly when called. An incorrect diagnosis may lead to failure to properly attend to the patient.

The duty of the physician to treat the patient arises most commonly from a voluntary agreement based on the implied promise by the patient to pay for the services rendered.

In an emergency situation, however, the physician’s duty may arise from undertaking to provide treatment even though there may be no intent ever to charge for the services and no consensual promise to pay for the services.  Hence, the courts often find the existence of a patient-physician relationship where the physician merely undertakes or begins treatment on behalf of the patient.

If the specialist physician is contacted by an emergency room physician and gives any advice or the appearance of any advice, a physician-patient relationship has been undertaken.  Once initiated, the physician-patient relationship continues until it is dissolved by mutual consent of the parties or by the physician’s unilateral dismissal of the physician.  The physician can unilaterally terminate the relationship only by giving the patient adequate notice or by arranging for suitable care by another physician.  Failure to do this when there is an existing injury for medical services may allow the physician to be held liable for abandonment.  It is necessary that the act of abandonment be the legal cause of the damages suffered by the patient or there will be no liability.

The first Good Samaritan Statute was enacted in California in 1959.  The objective of this and all other statutes was to encourage the physician to render emergency aid on highways and other public places.  The various state laws are all different except for their brevity.  They all generally hold that the physician shall not be held liable for injuries alleged to have been suffered as a result of an act or omission of an act in rendering first aid unless the volunteer was grossly negligent and rendered less than “ordinary care”.  Most statutes require that the care be rendered without payment.

Some good Samaritans have been held liable to the victim if the volunteer’s actions worsened the victim’s condition by increasing the danger, leading the victim to believe incorrectly that the danger was past, or inducing the victim to forgo help from others.

Standard of Care

The standard of care typically quoted is “that the degree of skill and learning ordinarily used under the same or similar circumstances by members of the profession”.  For ophthalmology, all jurisdictions use at least a statewide and now almost all use a national standard.  It is also generally required that expert testimony be called to establish a breach of this standard since such matters are beyond the competence of a lay jury.  The general rule is that the circumstances must be of such a character that the layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed had due care been exercised.


Medical records are essential to the defense against medical malpractice actions.  The records are admitted as evidence under the Hearsay Rule’s Business Record exception.  This means that they are presumed to be accurate and truthful.  This exception states that contemporaneously recorded data made in the usual course of business for business purposes may be admitted without the usual safeguards of truth such as an oath, cross examination, and viewing by the jury.  However, the opposing party can challenge the presumption that the records are accurate and truthful, and attempt to show that they are biased, prejudiced, or untrue.  Therefore, any alteration or even well-meaning changes made in these records can be disastrous for the defense.

Since malpractice suits may often be litigated for 2-5 ears after the treatment in question, the hospital or office medical record is often the only detailed record of what actually occurred.  Negligent failure to maintain these records for the statutory required period of time, or intentional destruction of medical records needed by a plaintiff to proceed with a claim, has led to court rulings that shifted the burden of proof so that the defendants had to attempt to prove themselves nonnegligent rather than leave the proof to the plaintiff.


Damages in ophthalmology cases are usually clearly evident and measurable by such yardsticks as loss of visual acuity, loss of visual field, double vision, cosmetic effects, and lost wages.  Pain and suffering, although subjective, can be objectively valued by the jury upon persuasive evidence.

General Guidelines to Avoid Malpractice Litigation

It is often the traumatic and frightening experience for an ophthalmologist to be involved in a suit as a defendant in a medical malpractice suit.  The initial shock should not precipitate irrational or angry behavior, which is counterproductive to the physician’s interests.  Cooperation with one’s attorney is essential in assuring the best defense.  Avoidance of malpractice litigation is enhanced by following a few simple rules:

  • Be kind to the patients.  Nothing breeds litigation like hostility.
  • Keep good records.
  • Inform your patients of all of the possibilities.
  • Don’t be afraid of second opinions.
  • Write letters and document your records with return-receipt-requested letters discharging patients, following up on no-shows, explaining complex points to patients, and so on.
  • Be careful what you say about others.
  • Train, monitor, and control your employees.

I’m Ed Smith, a Sacramento medical malpractice lawyer. Although I represent injured parties, an ophthalmologist friend asked me to write this article about how doctors and hospitals make mistakes and how they might be avoided.

Call me anytime at 916-921-6400 or 800-404-5400 for free, friendly advice.

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