A woman presented to a Vermont hospital emergency department (ED) complaining of sudden-onset neck pain. She was evaluated by an emergency physician, who made a diagnosis of a twisted neck and prescribed pain medication. The patient's symptoms worsened, and she returned to the ED three days later. This time, a diagnosis of brain aneurysm was made.
The aneurysm ruptured during an attempted surgical repair, leaving the patient with a serious, permanent neurologic injury.
The plaintiff claimed that testing should have been performed at the initial ED visit that would have resulted in identification of the aneurysm.
The defendant hospital maintained that the plaintiff received the same care that would have been provided if the correct diagnosis had been made earlier. The defense claimed that the plaintiff would have been at the same risk for aneurysm rupture if reparative surgery had been performed at the time of her initial visit to the ED.
The matter was first tried as to liability. The jury found negligence, but not proximate cause, resulting in a defense verdict.
In this case, the jury found negligence, but not proximate cause. In the legal system, litigation is divided into criminal and civil cases. A tort is a civil wrong giving rise to a compensable event. The tort of negligence is a legal theory of recovery of damages, provided the plaintiff is able to plead and prove the necessary elements. Most clinicians have some understanding of the elements of a negligence claim:
(2) Breach of duty
(4) Causation (ie, the conclusion that the harm was caused by the breach of duty).
Duty. First, there must be a legal duty to act. In a typical clinician-patient relationship, such a duty exists. Yet, should a dermatologist's next-door neighbor have an obviously cancerous facial melanoma, the neighbor could not prevail on a malpractice claim that the dermatologist breached the standard of care by not noticing the mole at a neighborhood Christmas party and acting. In contrast, if that neighbor asked for the dermatologist's opinion and the dermatologist rendered one, a clinician-patient relationship is created, and a legal duty attaches.
Breach. Breach of duty, a breach of the standard of care, is an element of the tort of negligence often referred to as "negligence" itself. Clinicians are most familiar with this element, because the standard of care comprises the body of knowledge that we implement when practicing. A clinician will be held to the standard of care for his or her discipline. Therefore, a chiropractor will be held to the standard of care as a reasonably prudent chiropractor, a naturopath will be held to the standard of care for a reasonably prudent naturopath, and so on. A family health care provider will not be held to the same standard of care as a specialist.
Harm. Harm is also required. The patient must have experienced some negative consequence resulting from the interaction. Should the clinician make an error, but the patient fortuitously escape harm, there can be no recovery; the plaintiff cannot recover for a "near miss."
Causation. Assuming all the elements are present, the last and often most thorny issue is that of legal causation. There are two types: cause-in-fact and proximate causation. The test for cause in fact is "but for a given act," harm would not have occurred.
For example, Patient A with an allergy to lidocaine is hit with a piñata stick at a party carelessly swung by Person B. Patient A, in need of sutures, presents to the ED (it was quite a stick). Clinician C does not ask about allergies and fails to discover the patient's allergy to lidocaine. Clinician C administers lidocaine; Patient A suffers a profound allergic reaction and succumbs. Who is responsible?
Person B and Clinician C both satisfy the "but for" test. "But for" Person B's carelessly swung piñata stick, the patient would not have been harmed; "but for" the administration of lidocaine, the patient would not have been harmed.
However, Clinician C's action is closer in the chain of events to the harm suffered and, legally, would be the proximate cause of the harm to Patient A. Why? The issue turns on the foreseeability of the harm that would flow from the breach. It was foreseeable that Clinician C's failure to take an allergy history could cause death from an allergic reaction. It was not foreseeable that Person B's errantly swung stick could cause death from an allergic reaction (even though it was foreseeable that Person B's action could cause the wound).