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Wednesday, April 24, 2019
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"Med Mal 101: Back to Basics"
is 12-part series produced by Friday, Eldredge & Clark. Written by the attorneys in the Medical Malpractice Group, the content will be delivered monthly via email and is designed to give physicians and other healthcare providers information they need to know about malpractice litigation.
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Part 4 of 12:
Causation
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In Arkansas, when a patient sues a medical care provider, the patient has the burden of burden of proving: (1) the standard of care that was required of the medical care provider, (2) that the provider failed to act in accordance with that standard, and (3) that as a proximate result of a failure to act in accordance with that standard, the patient suffered injuries that would not otherwise have occurred.
[1]
The standard of care element was discussed in
Part 3 of this series.
As discussed previously, all three elements are required. To recover damages, a plaintiff must prove not only that a medical care provider breached the applicable standard of care, but must also show that the provider’s breach proximately caused the plaintiff’s injuries. Proximate cause is defined as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.”
[2]
The plaintiff’s proof must therefore demonstrate that “but for” the medical provider’s negligence, the plaintiff’s injury or death would not have occurred.
[3]
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When there is an undesirable medical outcome, one cannot assume that it was due to a breach of the standard of care. On the contrary, it is not unusual for a particular treatment to fail, or for a patient to undergo surgical complications or experience medication side effects, for example. Unless the outcome would not have occurred “but for” a breach of the standard of care, however, there is no malpractice. A plaintiff in a medical malpractice case, therefore, has the burden of proving, to “a reasonable degree of medical certainty or probability,” that the injury would not have occurred “but for” the breach of the standard of care.
[4]
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This information is not a substitute for legal advice and should be considered for general guidance only.
[1] - Ark. Code Ann. § 16-114-206(a)
[2]
- Dodd v. Sparks Reg'l Med. Ctr.
, 90 Ark. App. 191, 200, 204 S.W.3d 579, 585 (2005)
[3] -
Id.
(citing
Ford v. St. Paul Fire & Marine Ins. Co.
, 339 Ark. 434, 437, 5 S.W.3d 460, 463 (1999))
[4] -
Ford
, 339 Ark. at 437, 5 S.W.3d at 463
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Next month, Part 5 of our series will answer the question: What happens if there is a bad outcome that could not be avoided?
Previous articles:
For a complete schedule of future articles,
click here.
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Medical Malpractice
Attorneys
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Why Back to Basics?
In a recent study published in The American Journal of Surgery, the majority of general surgery residents surveyed felt that they were not aware of resources available to them in case of litigation.
[1]
This is an unfortunate statistic since according to the American Medical Association, one in three physicians have been sued at some point in their career, and nearly half of physicians age 55 and older reported having been sued.
[2]
With this series, we will provide medical personnel practicing in Arkansas with a general overview of the legal process. We hope to dispel some common myths and to aid in a better understanding of what actually happens when a medical care provider is sued for malpractice.
These articles are intended to provide general educational information only and cannot take the place of experienced legal advice.
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[
1]
Beiqun Zhao, Luis C. Cajas-Monson, & Sonia Ramamoorthy, Malpractice Allegations: A reality check for resident physicians, 217 American Journal of Surgery 350-355 (2019).
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Medical Malpractice Group
When faced with a medical malpractice claim, healthcare providers require respected, experienced counsel they can trust to defend their practices and reputations. The attorneys in our Medical Malpractice Group are devoted to the defense of physicians, nurses, practice groups and hospitals in malpractice cases, which provides unique insight into the complexities of this type of litigation.
At Friday, Eldredge & Clark, we are focused on providing our healthcare clients with consistently talented, ethical and efficient representation before state licensing boards and in all stages of litigation though jury trial and appeal.
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About the Firm
Friday, Eldredge & Clark, LLP serves business, non-profit, governmental and individual clients in Arkansas and across the United States. It is one of the oldest law firms in the state and has been the largest Arkansas-based law firm for more than 50 years. The firm has practice areas focusing on General Litigation; Class Action and Business Litigation; Railroad; Labor and Employment; Medical Malpractice; Public Finance; Healthcare; Estate Planning and Probate; Employee Benefits; Real Estate and Commercial Transactions; and Merger and Acquisitions. Friday, Eldredge & Clark has offices in Little Rock, Fayetteville and Rogers, Arkansas.
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