Malpractice Suits

Liability for malpractice is generally understood as tort liability even though arising out of a contractual relationship.  A physician may also 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[i]. 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.

The following are the elements which establish a medical malpractice case:

(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[ii].

Absent an allegation that a defendant physician has undertaken a special contractual obligation other than to provide adequate medical service, no cause of action for breach of contract is stated[iii].  However, a physician and patient are at liberty to contract for a particular result, and if that result is not attained a cause of action for breach of contract results which is entirely separate from one of malpractice, although both may arise from the same transaction[iv].  Thus, an action for damages for injuries resulting from medical treatment may be based upon an express contract[v].  Moreover, if a tort arises out of nonobservance of contract duties and causes the death of the patient, an action may lie under a wrongful death statute[vi].

In addition to the right of any person injured by the malpractice of a physician to maintain an action based on the malpractice, a husband or wife may bring an action to recover for loss of consortium, services, and earnings, and for medical expenses, resulting from injuries or illness of his spouse caused by malpractice.  However, although the surviving spouse may be entitled to bring a wrongful death action arising out of negligent treatment of his deceased spouse, where a husband and wife were not yet married at the time of the actionable conduct, the surviving spouse may not have a claim for loss of consortium[vii].  Minor children of a decedent may be permitted to maintain separate causes of action for loss of society and companionship, when the decedent is survived by a spouse who also brings a claim for loss of society and companionship[viii].

Parents may bring suit to recover damages for loss of services, or the death of their child due to malpractice.  On the other hand, a parent may not be permitted to bring an action for medical malpractice against a health-care provider, who has treated his child, for damages allegedly inflicted directly upon the parent, where the plaintiff and the defendant never entered into a physician-patient relationship[ix].  Moreover, an action by parents seeking to recover damages from a physician for injury to their relationship with their child allegedly arising out of the physician’s malpractice in the care of the child is properly dismissed, where no evidence of injury to the child is presented, as required in order to maintain a cause of action under a statute allowing a parent to pursue an action for injury or death to a minor child[x].

Although the existence of a health-care provider and patient relationship ordinarily is a prerequisite for a medical malpractice action, a third party who is injured by reason of a physician’s negligence may be entitled to bring an action based upon some other theory of liability against the physician; thus, a child who witnesses his parent’s fatal heart attack, which was allegedly caused by a physician’s malpractice, may be able to show a discrete identifiable traumatic event occurring to a close relative sufficient to state a claim of negligent infliction of emotional distress against the physician[xi].  Likewise, allegations that a physician was negligent in prescribing a drug for his patient without warning the patient not to drive an automobile while under the influence of the drug, and that injuries sustained by the plaintiff were the result of the patient’s impaired driving while under the influence of the drug, may be sufficient to state a cause of action for negligence against the physician.  On the other hand, a treating physician does not have a common-law duty to third parties to warn an epileptic patient not to drive, for purposes of a negligence claim against the physician if the patient has an accident and injures a third party during a seizure, since the danger of having an epileptic seizure while driving should be apparent to the patient[xii].

In a suit for injuries caused by alleged malpractice, the burden generally is on the plaintiff to prove a lack of reasonable and ordinary care or skill on the part of the physician or surgeon[xiii].  A patient who asserts that the statute of limitations has been tolled, due to fraudulent concealment of the injury by the physician, also has the burden of establishing a claim that information has been fraudulently concealed so as to delay the running of the period of limitations.

The burden of proof for a plaintiff in a medical malpractice case is fixed by statute, and the statute requires that, in any action for a medical injury, expert testimony is necessary regarding the skill and learning possessed and used by medical care providers engaged in that specialty in the same or similar locality[xiv].

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

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

[iii] Liebler v. Our Lady of Victory Hospital, 43 A.D.2d 898, 351 N.Y.S.2d 480 (4th Dep’t 1974)

[iv] Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 (1955).

[v] Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029, 74 A.L.R. 1252 (1931).

[vi] Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966).

[vii] Du Bois v. Community Hosp. of Schoharie County, Inc., 150 A.D.2d 893, 540 N.Y.S.2d 917 (3d Dep’t 1989).

[viii] Jelinek v. St. Paul Fire & Cas. Ins. Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994).

[ix] Koltz v. Bezmen, 822 F. Supp. 114 (E.D. N.Y. 1993).

[x] Benoy v. Simons, 66 Wash. App. 56, 831 P.2d 167 (Div. 3 1992).

[xi] Love v. Cramer, 414 Pa. Super. 231, 606 A.2d 1175 (1992).

[xii] Praesel v. Johnson, 967 S.W.2d 391 (Tex. 1998), reh’g of cause overruled, (June 23, 1998).

[xiii] Price v. Neyland, 320 F.2d 674, 99 A.L.R.2d 1391 (D.C. Cir. 1963);

[xiv] Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002).


Inside Malpractice Suits