Caring for critically ill newborns takes years of training in which the clinician learns both the art and the science of the field. Relatively little time is spent learning about the legal system related to this discipline. The myriad regulations, unfamiliar language, and multimillion-dollar malpractice verdicts are hard to understand and comprehend. Consequently, most clinicians view the legal system with great mistrust and trepidation. Yet it is essential that physicians, nurses, and other health care providers understand their rights, duties, and liabilities while practicing health care. Additionally, modern neonatal medicine is a team endeavor and is built on a number of relationships. Physicians must understand the legal relationship they have with their patients and families and must also understand the legal relationships they have with employers, the hospital and nurses, referring physicians, respiratory therapists, neonatal nurse practitioners, and physician assistants.
This chapter provides an overview of the legal system in the United States, including the way it is structured as well as basic vocabulary and concepts. The goal is to provide the clinician with a better comprehension of the legal principles that affect neonatal respiratory care on a daily basis. While this chapter will center on the U.S. legal system, legal issues and medical malpractice affect clinicians globally. In fact, some European countries are experiencing triple-digit increases in the number of cases presumed “malpractice or bad health care.” Accordingly, physicians who practice in any country must understand the particular laws and regulations where they practice.
Disclaimer
The purpose of this chapter is to provide an overview of legal issues to educate clinicians. This chapter does not create an attorney–client relationship and should not be taken as substantive legal advice. Medicine is regulated at both the state and the federal levels, and laws vary significantly from state to state. The outcome of a legal case is based upon a particular set of facts, witnesses, attorneys, judges, and juries. A clinician should never assume that his or her situation is exactly the same as that of any case mentioned in this chapter. For specific questions, the reader should consult a qualified attorney.
General Legal Principles
If law is the system of rules upon which we live, then the U.S. Constitution is the highest law of the land. Dating back to 1789, the Constitution sets up the framework of the federal and state governments. The federal government is divided into three separate but equal branches. Congress, composed of the Senate and House of Representatives, forms the legislative branch and is charged with making laws. The executive branch, led by the president and by far the largest branch, with approximately 5 million employed, carries out the laws. The judicial branch, which includes the U.S. Supreme Court, reviews the ways in which laws are applied and mediates between the other two branches. State governments have the same organization as the federal government except the executive branch is led by the governor instead of the president.
Both the state and the federal government court systems have hierarchies that are shown in Figure 7-1 . While both federal and state laws affect the practice of medicine, medicine is primarily regulated by the states. Thus, for example, a physician or respiratory therapist licensed in one state cannot practice in another state without obtaining an additional license to practice in that state. Similarly, the majority of legal cases involving medicine are adjudicated in the state court system. For this reason it is important for a clinician to understand the relevant laws affecting practice in the states in which he or she has a medical license.
Supervision of Others
Modern neonatology is a team effort. The attending physician is generally considered to be the leader of the team and as such has traditionally been held responsible for the acts of other team members. This can even include situations in which the physician has had no contact, direct or indirect, with the patient filing the lawsuit. There have been a number of legal theories to justify this position. One analogy has held physicians, especially surgeons, to be analogous to the “captain of the ship” and thus responsible for all of the crew under his or her command. As care models have evolved and health care systems expanded, courts have increasingly rejected the captain of the ship doctrine, recognizing that the “theory” that the attending “directly controls all activities of whatever nature … is not realistic in present day medical care.”
While the attending neonatologist is no longer held responsible for all activities that occur in the neonatal intensive care unit (NICU), he or she still has authority over the actions of others in the unit. Consequently he or she may still be held liable under the legal theory of respondeat superior, which is Latin for “let the master answer.” When there is negligence by a nurse practitioner or resident who is within the legitimate scope of authority of the attending neonatologist, such as during an intubation, the attending may be held liable.
Attending physicians are also expected to provide appropriate supervision of residents and other health professionals and can be held liable for “negligent supervision.” In one high-profile lawsuit, an attending anesthesiologist failed to respond to a resident physician’s request to assist in an emergent cesarean section. The plaintiff alleged that the delay in timely supervision was the cause of permanent brain damage to the fetus, and the case settled for $35 million.
Malpractice
The cost of medical malpractice in the United States has been estimated at $55.6 billion per year. Indeed several presidents have addressed the issue, including President Obama during his 2011 State of the Union Address, in which he lent support for “medical malpractice reform to rein in frivolous lawsuits.” These lawsuits have an impact on a large number of physicians. A study released by the American Medical Association (AMA) contained staggering numbers, including the fact that 95 liability claims were filed for every 100 physicians and that 61% of physicians 55 and older have been sued. The AMA report found that the majority of cases (65%) were dropped, dismissed, or withdrawn and another 26% settled, but when the case did go to trial the physician prevailed 90% of the time. In the United States, however, each side pays its own costs, and the average defense costs were over $40,000 per claim and over $100,000 when the case went to trial.
Most medical malpractice cases are filed with the plaintiff claiming that the physician was negligent. Negligence lawsuits are part of the broader category of law known as torts , which is French for “wrong.” Other broad legal categories include contracts, real property, and criminal law. Tort law is generally divided into intentional and unintentional torts. Most malpractice cases are considered unintentional torts, which is preferable as intentional torts such as defamation often carry broader penalties.
To prevail in a malpractice lawsuit the plaintiff must prove that the clinician has failed to act as a reasonably prudent physician in the same or similar circumstances. In practice, this requires the plaintiff to prove four elements: that the physician had a duty to the patient that was breached and that in turn caused measurable damages .
Duty
The first element that must be shown in a malpractice case is that the physician had a duty or physician–patient relationship with the patient. If there is no duty to the plaintiff, then the physician has no obligation toward the patient and there is no negligence. For example, if a physician practices only at hospital A, he or she cannot be held liable for refusing to attend a delivery at hospital B. The existence of a duty, however, is usually not in dispute in most neonatal malpractice cases. Furthermore, it is possible for a physician who has cared for a pregnant woman to have a duty toward the newborn even if the baby is cared for by a separate physician. This was shown in the case of Nold v Binyon , in which a newborn became a chronic carrier of hepatitis B and the obstetrician had failed to inform the woman of her hepatitis B status. The obstetrician claimed that there was no duty toward the newborn but the Kansas Supreme Court disagreed, stating that “A physician who has a doctor–patient relationship with a pregnant woman who intends to carry her fetus to term and deliver a healthy baby also has a doctor–patient relationship with the fetus.” As discussed earlier, another situation in which a duty may attach even when the physician never saw the patient is in the context of supervising other clinicians such as residents and nurse practitioners.
Breach
Once a duty has been established the plaintiff must next show that the clinician breached his or her duty by violating the “standard of care.” There are misconceptions about “standard of care” that are important to clarify. First, physicians are not expected to be perfect but rather are expected to act as a “reasonably prudent” physician exercising “reasonable care and diligence.” Second, “standard of care” is a legal concept that must be applied to a specific fact pattern of a case in litigation. The plaintiff’s attorneys claim that the defendant has departed from an acceptable standard of care. The defense counters that the clinician has met the standard of care. Third, traditionally physicians were compared to other physicians in their local community. With changes in communication (i.e., national meetings, national journals) and a move toward national board certification, physicians in specialties such as neonatology have increasingly been compared to other specialists nationally. Thus a neonatologist in California can testify as an expert witness about the standard of care in Ohio.
The Expert Witness
In most areas of negligence a jury can understand “reasonably prudent” behavior using common sense. A driver speeding 85 miles an hour in a snowstorm is obviously not using “due care.” In most medical malpractice cases, however, lay juries do not know what a reasonably prudent practitioner would have done. So expert witnesses are used to explain it to a jury. Each state decides what “qualifies” an individual to serve as an expert witness. Expert witnesses testify under oath, and the American Academy of Pediatrics expects pediatricians who serve as experts to provide “thorough, fair, objective, and impartial” testimony for reasonable compensation. Nevertheless, concerns remain that “hired gun” experts “fuel inappropriate litigation through testimony that is not well grounded in prevailing clinical standards or science.” Many states are taking proactive steps in an attempt to improve the quality of expert testimony. Florida, for example, now requires physician experts from out of state to obtain an expert witness certificate issued by the state. By obtaining the certificate the expert physician is then subject to discipline by the Florida Medical Board.
Causation
In addition to showing that the clinician breached his or her duty to the patient, the plaintiff must show that the breach in question was actually the cause of the injury for which the patient is suing for damages. It can be difficult to determine whether it was the breach of care rather than the underlying medical condition that led to the injury, especially in neonatal cases. Normal healthy newborns, for example, do not require resuscitation. So when an infant is born depressed and requires significant resuscitation it may be difficult to prove that it was the delay in intubation, for example, rather than the underlying pathology requiring intubation that led to a poor outcome. As with the element of breach, expert witnesses testify before the lay jury about causation issues.
Damages
The ultimate purpose of tort law is to “make whole” a party who has been injured through negligence. Accordingly, the final element a plaintiff must prove is that the injury led to measurable damages. There are two broad categories of damages: economic and noneconomic. Economic damages include items such as medical expenses, lost wages, home accommodations, and education expenses. Noneconomic damages include claims that are subjective and often more difficult to quantify, such as pain and suffering, emotional distress, or loss of the parent–child relationship. “Runaway jury” awards are often associated with noneconomic damages, and thus many state legislatures have placed limits on them as part of tort reform efforts. California, for example, has a $250,000 damage cap on noneconomic damages. The California Supreme Court ruled that such a cap was constitutional. However, other states, including Georgia and Illinois, have decided that state caps on noneconomic damages are in violation of their state constitutions.
If behavior is particularly egregious, courts may sometimes award punitive damages to the injured party. These are relatively rare in medical malpractice cases, but can occur, for example, in cases in which the physician has behaved in a particularly reckless manner. An example would be if a physician practiced while under the influence of drugs or alcohol or intentionally altered or destroyed pertinent medical records in an effort to avoid liability.
Burden of Proof
The burden of proof refers to the “degree of belief” that the judge or jury must have to decide that a particular fact is true and find for one side over the other. In criminal cases, because of the injustice of jailing an innocent person, there is a very high burden of proof known as “beyond a reasonable doubt.” Medical malpractice cases, on the other hand, have a much lower burden of proof. In general the plaintiff must show for each element that it is “more likely than not,” otherwise known as the preponderance of the evidence or the “51% test.”
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