A Physician’s Duty Of Care: What Duties Do Physicians Owe Patients?

Medical Malpractice Mistakes

A physician’s duty of care is the first, truly important element in an inquiry into whether a physician is liable for medical malpractice. In a negligence claim, which a medical malpractice claim essentially is, the elements are a duty, breach of that duty, there was harm, and the breach was the proximately cause of that harm. Thus, a duty is the first hurdle a claim has to jump over.

A physician owes the patient many duties, which can even change by locality (see my last post!), practice/hospital (certain guidelines in a hospital might require a doctor to do more than other hospitals or the law generally requires), and obviously in other states or countries.

The law provides at a minimum a physician owes a patient a duty to possess the requisite knowledge and skill that is possessed by the average member of the medical profession. This one is quite important. Also, the law requires that a physician exercise reasonable care and diligence in the exercise of such professional knowledge and skill. Last, a physician must use his or her best judgment in the application of this knowledge and skill. This means that a medical malpractice claim can arise from a lack of knowledge or ability, a failure to exercise reasonable care or failure to use one’s best judgment. A physician’s duty to exercise reasonable and ordinary care, skill, and diligence is required regardless of the existence or not of compensation and therefore applies even when services are rendered gratuitously.

To establish a claim of medical malpractice, the patient MUST prove a breach of ONE of these duties against the physician. Only one is required, but generally if you have one, the others or another will also be violated. Moreover, it does NOT matter whether this is an ELECTIVE procedure, emergency surgery, covered by insurance or not covered by insurance, or if it is COMPLETELY FREE! Yes, a doctor performing FREE medical treatment CAN be liable for medical malpractice! Theoretically, doctors without borders can be sued by lawyers without borders!

This duty can also be owed to TWO patients are the same time. Most commonly, this is exhibited in childbirth cases, but it could come up in organ transplant cases or conjoined twins. But it will NOT extend to others, like family members or friends. UNLESS there is a special relationship and they might be put at risk by the doctor’s medical malpractice. For example, in one case a patient was very contagious with TB, but the doctor misdiagnosed them and sent them home to their parents and boyfriend. The parents, who were the primary caretakers, WERE allowed to sue because there was a special relationship. However, the boyfriend could NOT sue because the law does not recognize that as a special relationship (it was not a live-in boyfriend, and they had only been dating for a few months). The law WILL recognize a duty to a spouse though!

But what do you think? I would love to hear from you! I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com. You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.