Defining Negligence

When assuming the duty of care for another individual, one may be accused of breach of that duty. It is not surprising that a recent review indicated that urologists are not immune to such risk, and may be named the primary defendant in a medical malpractice lawsuit in the course of their career (2). Kahan et al. reported 259 medical malpractice claims against urologists consecutively closed between the years of 1995 and 1999 and carried by the St. Paul Insurance Companies.

These investigators found that the greatest percentage of claims arose from the categories of inpatient, adult, and surgical procedures, and that endourological procedures resulted in the greatest incidence of surgical claims. This was in contrast to an earlier report in 1977, which had shown vasectomy to be the most common claim generating procedure (3).

A medical malpractice suit implies negligence on the part of the physician. In discussing negligence, it is essential to examine the concept of "duty of care" (4). Negligence is a tort, that is, a civil rather than a criminal wrong. To prove negligence, the plaintiff (claimant, injured patient) must prove three essential components of the tort, and these are: (i) the existence of a duty to care to the patient, (ii) a breach of that duty by failing to adhere to the standard of care for that treatment or procedure, and (iii) as a consequence of that breach the patient suffers damage or harm.

In the relationship between the surgeon and patient, the duty of care unquestionably exists. The reported legal decisions address whether someone other than the surgeon, i.e., the hospital where the surgery is performed also has a duty (5,6). In accepting this duty as a physician, one accepts to take measures to avoid acts or omissions that one can foresee would be likely to injure one's patient. The importance of duty of care in the introduction of emerging technological advances to clinical practice is evident. This is made more complex by lack of defined guidelines for training and credentialing in new technologies, and a learning curve for the procedures that is ill defined. The court must first assess whether it is fair and just to impose a duty of care in the circumstances arising to a claim.

Whether or not there is a breach of duty of care will depend upon several factors. Important is whether a reasonable person (i.e., qualified peer) would have acted in the same way under the same circumstances.

Crucial factors are: foreseability of harm, magnitude of the risk imposed, the practicality of taking precautions, and reasonableness of the urologist's actions.

The claimant will need to show that a reasonable person would have foreseen the risk of an adverse event, and must show that a reasonable person would have taken steps to avoid it. It is incumbent upon the physician to take all reasonable steps to minimize risks to the patient. In one case of inadvertent ureteral obstruction following hysterectomy, where the operating surgeon had taken reasonable steps to identify the ureters and had passed contrast medium through them to demonstrate their patency after hysterectomy and clearly documented the same, the Court was satisfied that all practical steps had been taken and the surgeon was not held to be negligent (7). By contrast, in another case where there was no mention that these steps were taken, the court did not rule in favor of the surgeon (8).

Reasonableness is assessed by measuring the acts of the urologist against the standard of care in that area as practiced by other professionals. The plaintiff must show that the doctor did not act in accordance with accepted practice. If the physician's actions are opposed by many healthcare professionals in the field, the doctor will have great difficulty in defending those actions.

New technologies and the absence of well-defined guidelines for skill acquisition and accreditation (i.e., laparoscopic partial nephrectomy) by professional societies may increase the liability of urologists performing these new procedures. It will be difficult to argue that a breach of duty of care did not occur. In such cases, there may be no "customary practice" and a court may focus more on whether physician secured the patient's informed consent through full disclosure of the significant risks associated with the proposed procedure and alternative therapies.

When appropriate, the surgeon must disclose and document the experience with the procedure and the results the surgeon has achieved (9,10). It is not acceptable for a urologist simply to advise the patient of the general results in the field and imply that his outcomes will be similar.

In a medical malpractice action, the plaintiff must show that a loss was suffered as a direct consequence of the breach of duty of care. The claimant's burden of proof is met if the claimant shows on the balance of probabilities (i.e., where it is considered more likely than not, to be the truth). Juries in malpractice cases rarely find against a physician for lack of informed consent alone without concomitant injury (11).

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