Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at siang@hawaii.edu.

Standard of Care