Law Review
Don't Have that Day in Court
An eye-opener on medical malpractice.
PAUL PENG, O.D., J.D., AND TOM CAIN, ESQ.

When a patient initiates a lawsuit claiming malpractice, he's really suing the doctor under the general legal theory of negligence. To avoid unnecessary litigations, you must understand the theory of negligence from the court's perspective. By understanding what it takes to win a malpractice/negligence challenge, you can lessen the chances of litigation before a patient initiates legal action.

A prime example

Consider the following:

Mr. Plum has been Dr. Freed's patient for 5 years. His prior history shows that someone in his family suffered some acute glaucoma attacks, but the person, time frame and nature are unknown.

Dr. Freed has always found Mr. Plum's intraocular pressure (IOP) to range from 16 mm Hg to 20 mm Hg. His automated visual fields were always within normal limits. During routine slit lamp exams 3 years ago, Dr. Freed noted that the angles were between 1 and 2 using the perilimbal shadow test. He's never performed gonioscopy on Mr. Plum, nor has he referred him for further opinions.

Dr. Freed last saw Mr. Plum 1 year ago and reported no new findings, then advised him to return annually. Three months ago, Mr. Plum suffered an angle closure attack 2 days before he was to depart on a work trip. As a result, his IOP spiked to 60 mm Hg for more than 10 hours. Subsequent to his emergency room visit, he received laser surgery, which saved him from permanent vision loss.

The attack prevented Mr. Plum from attending his conference, and he lost his job, which he attributes to the missed meeting. He sues Dr. Freed claiming negligence on his eye care. He sues for damages including the loss of current and future earnings, medical bills and emotional stress.

Negligence

For a party to prevail in malpractice under the theory of negligence, they must demonstrate to the court and jury the presence of all four of the following elements: duty of care, breach of duty, causation and damages.

1. Duty of care. The court determines whether a true doctor-patient relationship exists. If it does, then the doctor is required to provide care to the patient.
   Unlike active and ongoing clinical relationships, a mere prior doctor-patient relationship won't trigger the obligation to provide care. Once the court determines that there is a duty of care, it then decides what level is required.
   • Standard of care. Malpractice is defined as the failure to provide care with the degree of skill and knowledge ordinarily possessed and exercised by members of the medical profession under similar circumstances. The hallmark of a contractual duty is a consensual relationship. However, the duty usually involved in a malpractice case is the failure to act reasonably under the circumstances. This duty is implied by law; it's not created by contract. Generally, the court applies standard of care based on peers in the same community.

     With the current fact pattern, did Dr. Freed owe Mr. Plum a duty of care? If so, was the care up to the proper standard? Is the referral for possible laser surgery because of narrow angles the standard of care with both optometry and ophthalmology?
     In our opinion, Dr. Freed did owe Mr. Plum a duty of care because Mr. Plum has been under his control for the last 5 years, so the doctor-patient relationship exits. Also, Mr. Plum's last encounter with any eye doctor before the incident was with Dr. Freed, who clearly had a duty to inform Mr. Plum of the potential of something happening to him because:

     • a positive family history exists (the Dr. Freed should've asked more about it)
     • Dr. Freed suspected that the angles were narrow
     • the pressures were in question. The judge will compare Dr. Freed to O.D.s and M.D.s in his community because, depending on the state, an O.D. does have the right to treat glaucoma.
2. Breach of duty. Where the defendant's (doctor's) conduct falls short of the level required by the applicable standard of care owed to the plaintiff (patient), she has breached her duty. The jury decides whether the duty of care is breached in an individual case. To prove the defendant's breach of duty, the plaintiff may use the theory of Res Ipsa Loquitur.
   In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of Res Ipsa Loquitur requires the plaintiff to show that:
   • the act causing injury wouldn't normally occur unless someone was negligent.
   • the defendant was in control of the instrument causing injury. (The instrument could be the doctor's care or lack of proper care and advice.)

   If the court established that Dr. Freed did owe a duty, was it breached? Can Mr. Plum raise the Res Ipsa Loquitur claim?
   From a legal standpoint, based on the fact that the standard of care will include a comparison to O.D.s and M.D.s in the same region, Dr. Freed should've considered or performed gonioscopy. In this aspect there was a duty, and it appears that the he may have breached that duty by not educating Mr. Plum and by not performing gonioscopy. Whether a preventative treatment was necessary is a jury's decision.

3. Causation. Once negligent conduct is shown (the demonstration of a breach of standard of care owed to the patient), the plaintiff must then show that the conduct was the cause of his injury.
   For liability to attach, the plaintiff must show both actual and proximate cause. Once actual cause is established, proximate cause is automatically established.
   • Actual cause. The direct harm resulting from the doctor's act. For example: A patient suffers a corneal abrasion induced by his O.D. and sues him for medical bills incurred while visiting another doctor to manage the abrasion.
   • Proximate cause. The indirect harm resulting from the doctor's act. For example: Because of the doctor's error, he induces a corneal abrasion. As a result, the patient loses depth perception, which leads to her involvement in an automobile accident. Now she sues the doctor for the damage of her car.

   In Mr. Plum's situation, assume there was a breach of duty -- was that breach the cause of Mr. Plum's loss? Was there a loss at all because he didn't suffer permanent visual loss? Did he lose his job because of Dr. Freed's actions?
   As a potential legal approach, although Dr. Freed did breach some duty, it's unclear from the facts whether his actions caused the patient's job loss. Therefore, the patient has the burden to prove that he lost his job because he didn't attend the meeting.

4. Damages. Because damage is an essential element of negligence, it isn't presumed. Rather, it's the burden of the plaintiff to prove this element to the court.
   Another view of damages is simply the actual suffering incurred by the plaintiff. If the patient can't demonstrate damages or actual suffering, even if the doctor was negligent and the negligent act was the cause of the patient's condition, the plaintiff won't prevail under the theory of negligence and won't collect any money.

Common types of damages

To identify what kind of damage has been suffered, the court looks at the following two types:

1. Compensatory damages. This usually refers to the money paid to the plaintiff and is intended to compensate him for the loss and put him in as good a position as if the injury had never occurred.
   The amount of monetary compensation includes anything from foreseeable losses (expenses incurred by the patient) to unforeseeable losses (future earning lost because of the current injury inflicted by the defendant). This dollar amount tends to reflect the amount requested by the plaintiff.
2. Punitive damages. In cases where the defendant's negligent act is outrageous, the court may impose additional compensation on top of the compensatory damages to punish the defendant or to set an example for others.

In Mr. Plum's situation, what kind of compensation would he receive? Money from a punitive perspective? Money to help recover his medical expenses? Money for his emotional stress from this ordeal?

In our analysis:

• regarding damages -- If the jury found that Mr. Plum didn't show enough findings to prove Dr. Freed to be negligent, then there shouldn't be damages. On the other hand, if the jury found in favor of the patient, damages shall be assigned with each accusation.
• medical expenses -- Here, the court will examine the actions of Dr. Freed. If the patient elected to go to the ER, and didn't attempt to contact Dr. Freed when he was available, then the expense shouldn't attach. If Mr. Plum attempted to contact Dr. Freed, but he wasn't reachable nor provided back-up coverage, then the patient may prevail for some expenses.
• sight Loss -- Because there wasn't permanent vision lost, there shall be no damages assigned.
• emotional distress -- This issue could initiate a separate legal action since the patient would have additional legal elements to prove. It's unlikely for the patient to win in the fact presented here.
• lost Wages -- Here, unless the patient can prove that the actual cause of the job loss was from not attending the meeting, Dr. Freed will have no liability. The patient may have a better chance initiating wrongful termination actions against the employer!

What could affect the outcome are the jury, the location of this occurrence, the quality of the attorneys and the expert witness they bring.

Avoid and be prepared

Optometry is perceived as a new deep pocket. This outlook results in our greater exposure to legal actions initiated by patients. By understanding the legal theories of negligence and malpractice, you'll increase the chance of winning during a malpractice defense. However, you should realize that avoiding a lawsuit is far more important than winning one.

Many feel that regardless of the verdict, the mere fact that you're in court makes it a lost cause. Not so! But no matter what you think or do, make sure your liability insurance is adequate! 

DR. PENG IS IN PRIVATE PRACTICE IN CASTRO VALLEY, CALIF. HE'S AN ASSISTANT CLINICAL PROFESSOR AT THE UNIVERSITY OF CALIFORNIA, BERKELEY, SCHOOL OF OPTOMETRY. HE'S ALSO A CONSULTANT IN VARIOUS ASPECTS OF LAW INVOLVING OPTOMETRY.

MR. CAIN HAS PRACTICED LAW SINCE 1980. HE'S CURRENTLY AN ADJUNCT PROFESSOR OF LAW AT GOLDEN GATE UNIVERSITY AND JOHN F. KENNEDY UNIVERSITY SCHOOLS OF LAW. MR. CAIN SPECIALIZES IN CIVIL LITIGATION INCLUDING MEDICAL MALPRACTICE.