We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state.

Your medical office is a place of healing. It is also a place of business. This means that you are not just under a duty to diagnose and treat your patients properly but are also to provide safe environment for all who enter. You can face liability not just for professional negligence based on your practice of medicine but for ordinary negligence that can apply in any business setting.

Although, you probably think of a professional negligence claim as being the most significant risk that you can face, the opposite can actually be true when it comes to ordinary negligence. Medical malpractice actions are more difficult to bring because they come under shorter Statutes of Limitations and often have pre-requisite steps like a Certificate of Merit. They are also more expensive to prosecute because they require experts. They also often have capped damages. A case based on complex medical care is also more likely to resolve in your favor than one based on a simple event like a fall. These are all factors that discourage a plaintiff from suing you for malpractice and which do not apply in an ordinary negligence claim.

If you only exercise due care in your practice of medicine because of concerns over a possible malpractice allegation but do not attend as closely to procedural and premises issues in your office that can trigger an ordinary negligence claim, then you are ignoring a likely liability source; one that will more likely favor the patient-now-a-plaintiff.

You also need to be concerned over the adequacy of your coverage because your professional negligence policy will not indemnify you or provide a defense for a claim of ordinary negligence.

Let’s therefore look at how a case will be evaluated vis a vis ordinary versus professional negligence and what your duties are as a proprietor as well as a practitioner.

The basic legal division between professional negligence and ordinary negligence is that the former relates to specialized knowledge proven by expert testimony while the latter is based on common knowledge that the trier of fact – a jury or a judge – will possess on their own.

Ordinary negligence applies to everyone who legitimately comes to your office, including patients and those who accompany them, your own employees, delivery people, drugs company reps and cleaning crews. You should actually consider that you will be held to have a duty to keep your premises safe for anyone who is not an actual trespasser or burglar. And there is even some case law that trespassers have prevailed on claims of ordinary negligence.

In the medical practice setting there is another level of analysis that applies only to injured patients: how intrinsic to medical care the injuring event was. The more that this is the case, the more likely the claim will be held to come under the rubric of professional negligence rather than ordinary negligence. As expressed by a California court, “The test is not whether the situation calls for a high or a low level of skill, or whether a high or low level of skill was actually employed, but rather the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed.”

The reason for this is that the duty of care to a patient deriving from the physician-patient relationship includes providing a safe environment within which such medical treatment can actually be provided.

This is separate from the duty to the patient as just a person in the office. In that role the patient is just like a non-patient – a person owed a reasonable duty of care against dangerous conditions on the premises that the doctor controls.

A patient who falls due to loose carpet in the waiting room would sue for ordinary negligence. But a patient who falls off an examination table comes into the scope of medical malpractice and a patient who slips on wet floor in the examination room would also sue for professional negligence. But their spouse who was just accompanying them who also falls on that wet floor would sue for ordinary negligence because they were not there for treatment.

A good rule of thumb in your own office is that from their entry onto your premises to the end of their stay in the waiting room the issue for an injured patient would be ordinary negligence but that when their appointment actually begins the issue shifts to professional negligence.

But, you may ask, how about the transitional events? For example, what if a patient is just following the nurse down the hallway to get to the examination room and they slip on a wet floor? The answer there is that a court would look at how intrinsic to the medical care that very specific situation was, that it would parse out on the particular facts that might include issues like the patient’s need to be supported during that walk or whether they were diverted by the nurse questioning them about their medical condition.

Some courts have reached different conclusions. For example, in a case from Georgia a patient getting a vaccination felt faint and fell off the examination table because the medical assistant did not prevent it. The court held that the patient’s case was not barred under the state’s requirement that an expert affidavit must be filed with the original complaint to bring a medical malpractice case. The court ruled the case was actually a claim for ordinary negligence rather than one for professional negligence. However, this is an outlier opinion and probably relates more to not denying an injured plaintiff their day in court than to an interpretation that you can rely on in a case of your own. In a practical sense physicians should expect a medical negligence claim if the injury occurred during care.

You must also bear in mind that a patient can sue for both professional negligence and ordinary negligence based on the same scope of events. For example, in a case from California, a patient sued her doctor for medical malpractice, claiming negligent care, and for harm caused by the equipment he used on her, claiming negligent maintenance. The court held that she could proceed on both claims in the same case because they were factually separate and legally distinct in foundation the criteria of how they would be proven.

Of course, as in a medical malpractice action, the plaintiff’s own negligence in causing their injury can be raised as a defense and set-off against any award in an ordinary negligence case.

There is a final issue to consider with regard to liability in your office: the doctrine of res ipsa loquitur, meaning “the thing speaks for itself”.

Normally, the plaintiff, who bears the burden of proof, must show that there was identifiable negligence on the part of the defendant in order to prevail. This doctrine, however, allows the plaintiff to point at the circumstances of the event and to create a rebuttable presumption (i.e.; the defendant must now refute it) of negligence by the defendant.

To do this the plaintiff must prove that:

– the harm would not ordinarily have occurred without negligence.

– the object that caused the harm was under the defendant’s sole control.

– there are no other plausible explanations other than the defendant’s negligence.

The classic example of this paradigm is a case in which a barrel rolled out of an upper story warehouse and injured a person below. The injured person was not able to determine what exactly had occurred to allow the barrel to break free and fall on him but successfully argued that without negligence on the part of the defendant, who was responsible for keeping the barrels from doing so, that that would not have occurred. In other words, barrels don’t just fall from buildings.

In the medical setting this doctrine often applies when anesthetized patients wake up with an injury like an arm palsy due to positioning during surgery but it can apply in an office setting as well. To see how this plays out let’s look at a case from Pennsylvania:

A quadriplegic patient was left alone, lying on his back on an examination table, after a mole removal. He fell off and suffered a fatal injury. How exactly he fell was never known and so when his widow sued she was unable to meet the standard burden of proof. However, on appeal the doctor and the nurse who left the patient alone were found to be subject to liability under res ipsa loquitur.

The patient in this case could not move voluntarily. It was possible that he had experienced an involuntary spasm but even then it was unclear that would have been enough to move him off the table. However, the appeals court held that it was not necessary to know exactly how he fell because a quadriplegic would not normally fall off an examination table without someone being negligent, in this case by leaving him alone on an elevated unit that had no guard rails. Since no one other than the doctor and the nurse had access to the patient during the relevant time period and the patient could not impact on his own condition and the table was solely under the control of the doctor and the nurse, the doctrine was held to be applicable. The defendants were then not able to rebut the presumption that they had failed to take due care to guard against the patient falling.

You therefore want to make sure that you and your staff are careful about issues like leaving a patient alone after treatment, particularly on an elevated surface, and controlling sharps and other hazardous materials. It is not enough to have proper procedures listed in a chart on the wall or in your employee handbook – you must make sure that those are carried out because they can underpin a res ipsa loquitur claim.

In summary: As the proprietor of a place of business you have a duty to the public to provide safe premises and can be liable under a theory of ordinary negligence if you do not do so. In the care of patients, however, a negligent act that is not specifically diagnosis or treatment related, but is intrinsic to rendering them will underpin a medical malpractice claim. Doctors should also bear in mind the doctrine of res ipsa loquitur, which creates a rebuttable presumption of negligence that can apply to an ordinary negligence claim or to one for medical malpractice.

Medical Justice Notes: [First rule. Make sure you have general business liability insurance coverage. You likely do. Just make sure. The cost is reasonably low – far lower than professional liability insurance. Next, keep your premises safe. And do not assume a patient will never faint and fall after a minor procedure. It’s not common. But, if it happens and the patient gets a subdural hematoma, there will likely be a claim for professional liability, and if the patient is blocked procedurally, don’t be surprised if the claim is submitted for ordinary negligence.]

What do you think? Share your comments below.

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