The welfare of the citizens of a state, and therefore of a state itself, demands that those persons practicing medicine and surgery must be duly able and careful[i].  A physician may be held liable for negligence or malpractice for deviation from the applicable standard of care.  The term medical malpractice is used as a breach of the professional duties of skill or care or their improper performance by a physician whereby the patient is injured in body or health.  The state demands that those persons practicing medicine and surgery must be duly able and careful[ii].

The following are different areas where liability for malpractice is discussed:

• The breach of professional duties of skill and care, or their improper performance, by a physician or surgeon whether they can be said to arise out of a contract between the physician and the patient, or from the obligation imposed by their consensual and fiduciary relationship whereby the patient is injured in body or health, constitutes actionable malpractice[iii].
• In actions for negligence, there can be no liability for malpractice unless there is established a duty on the part of the defendant toward the person treated and a violation of such duty.  Such a duty may derive from a statute, especially one prohibiting certain conduct.
• Generally, liability for medical malpractice is dependent upon the existence of a physician-patient relationship[iv], the existence of which is determined by the facts of each case.
• A physician who gives an informal opinion at the request of a treating physician does not owe a duty to the patient because no physician-patient relationship is created[v].  The presence or absence of a doctor-patient relationship is a factor to consider in determining the type or nature of the duty owed, if any, to the injured patient or non-patient[vi].
• A physician examining a patient for the purpose of certifying to ex parte application for commitment owes the patient the duty of reasonable care though he is not employed by patient and makes no report to him; however, the patient must prove the standard of medical practice to which physician allegedly failed to adhere, and damages resulting from his malpractice[vii].
• Although under the common law, an action for a personal injury caused by the negligence or lack of skill of a surgeon does not survive the death of either party[viii], there is authority to the contrary[ix].  Such a cause of action may survive under a survival statute, or may be construed as an action for breach of a contract, which survives under state law[x].  If a patient asserts the right to recover for damages for medical malpractice by filing a claim prior to death, the suit creates a property right that can be maintained by a succession representative[xi].
• Although a physician is accorded some deference to his or her professional skill, judgment, and care in the making of the abortion decision, neither the patient’s right to privacy nor the physician’s right to practice are so expansive as to preclude criminal prosecution of the physician arising out of his or her exercise of judgment or the manner in which an abortion is performed.  A statute penalizing physicians for abortions performed “by means other than justified medical termination or birth” is not unconstitutionally vague[xii].
• A state may not impose on a physician a standard of care which requires the physician to preserve the life and health of the fetus without regard to the stage of the pregnancy[xiii].
• With regard to vicarious liability, in a civil action by any person in which the owner or operator of a vessel or employer of a crew member is claimed to have vicarious liability for medical malpractice with regard to a crew member occurring at a shore-side facility, and to the extent the damages resulted from the conduct of any shore-side doctor, hospital, medical facility, or other health care provider, the owner, operator, or employer is entitled to rely on any statutory limitations of liability applicable to the doctor, hospital, medical facility, or other health care provider in the State of the United States in which the shore-side medical care was provided[xiv].
• A physician is not an insurer of his or her patient and is only liable for negligence[xv].  If a physician deviates from the applicable standard of care and that deviation proximately causes injury to a patient, the physician is liable for damages caused by his or her medical negligence[xvi]. The element of proximate cause can be established through a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable.
• A physician may be held criminally liable for culpable negligence in the treatment of a patient, such as a gross lack of competency, or inattention, or wanton indifference to the patient’s safety[xvii]. While a physician is not criminally liable for an unsuccessful result of treatment accompanied by simple negligence on his part, if the physician’s negligence was gross, or his conduct reckless, the physician may be criminally liable for the result.
• A physician may be criminally liable for conduct characterized by gross ignorance of the nature of the disease which he was treating or the nature of the treatment he was using, or for using dangerous methods or instruments unless he understood them. Likewise, the negligence of a physician in administering X-Ray treatment may be so culpable as to warrant his indictment for criminal negligence.
• However, a physician is not guilty of malpractice if he chooses a course of treatment supported by other physicians in good standing[xviii].

Finally, we may conclude that the following elements establish a medical malpractice liability:

(1) The physician owes the patient a duty of care and is required to meet or exceed a certain standard of care to protect the patient from injury;

(2) the physician breached this duty or deviated from the applicable standard of care; and

(3) the patient was injured and the injury proximately resulted from the physician’s breach of the standard of care[xix].

[i] Stevenson v. Yates, 183 Ky. 196, 208 S.W. 820 (1919).

[ii] Stevenson v. Yates, 183 Ky. 196, 208 S.W. 820 (1919).

[iii] Gust v. Jones, 162 F.3d 587, 50 Fed. R. Evid. Serv. 1520 (10th Cir. 1998).

[iv] Green v. Walker, 910 F.2d 291 (5th Cir. 1990).

[v] Irvin v. Smith, 31 P.3d 934 (Kan. 2001).

[vi] Meena v. Wilburn, 603 So. 2d 866 (Miss. 1992).

[vii] Di Giovanni v. Pessel, 104 N.J. Super. 550, 250 A.2d 756 (App. Div. 1969).

[viii] Hachmann v. Mayo Clinic, 150 F. Supp. 468 (D. Minn. 1957); Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644 (1947).

[ix] Burnett v. Layman, 130 Tenn. 423, 171 S.W. 76 (1914).

[x] Reed By and Through Reed v. U.S., 717 F. Supp. 1511 (S.D. Fla. 1988).

[xi] Nathan v. Touro Infirmary, 512 So. 2d 352 (La. 1987).

[xii] People v. Franklin, 683 P.2d 775 (Colo. 1984).

[xiii] Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976).

[xiv] 46 USCS § 30510.

[xv] Ward v. U.S., 838 F.2d 182, 24 Fed. R. Evid. Serv. 898 (6th Cir. 1988).

[xvi] Sheridan v. St. Luke’s Regional Medical Center, 135 Idaho 775, 25 P.3d 88 (2001).

[xvii] State v. Lester, 127 Minn. 282, 149 N.W. 297 (1914).

[xviii] Ward v. U.S., 838 F.2d 182, 24 Fed. R. Evid. Serv. 898 (6th Cir. 1988).

[xix] Lashure v. Felts, 40 Kan. App. 2d 1001, 197 P.3d 885 (2008).