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Please read the listed resources for the week and reflect upon the information c

Please read the listed resources for the week and reflect upon the information contained with an emphasis towards how they may currently apply to you directly and indirectly, or how they might apply to you in your future career. Please submit a 250 word (roughly 3-5 paragraphs, a single page that is single spaced with 12-point font and no greater than 1.5 spaces per line) on:
As a healthcare worker, removed from direct patient care, how are some of the ways in which you might become involved in a medical malpractice claim?
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The Vicarious Liability of a Physician for the Negligence of Other Medical Professionals – North Carolina Charts a Middle Course – The Effect of Harris v. Miller (
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hawkins.pdf (
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A Primer to Understanding the Elements of
Medical Malpractice
Gregory Q. Hill, JD1,2,3 Robert K. Ryu, MD, FSIR4
1 Emory Healthcare, Atlanta, Georgia
2Department of Radiology, Emory University, Atlanta, Georgia
3Kozacky Weitzel McGrath P.C., Chicago, Illinois
4Division of Interventional Radiology, University of Colorado
Anschutz Medical Campus, Aurora, Colorado
Semin Intervent Radiol 2019;36:117–119
Address for correspondence Gregory Q. Hill, JD, Department of
Radiology, Emory University, Atlanta, GA
According to a 2017 survey of 4,000 physicians across 25
different specialties in the United States, 55% of respondents
report having been sued at least once, with nearly half of them
having been sued multiple times. Procedural specialists are far
more likely to be sued, and nearly 40% of physicians who were
sued took 3 to 5 years to litigate the case.1 As a proceduraldriven specialty, interventional radiology (IR) practitioners are
subject to these frankly depressing statistics.While the focus of
all IR practices is providing the highest quality care safely and
efficiently, medical errors and complications are unavoidable.
Understanding the process of medical malpractice litigation is
necessary to develop strategies on how best to avoid and
mitigate the hardships of the process.
It is difficult to imagine being the target of a former
patient by which a claim of malpractice is alleged. Potential
side effects as a result of being named a malpractice defendant include anxiety, helplessness, and humiliation to name
a view. A deeply emotional response is common and understandable, given the recriminations and cognitive dissonance
that is often associated with malpractice litigation: I tried my
best to help someone, and now they want to harm me? It is
hard to relate to these feelings without having firsthand
The Standard of Care
It is important to adhere to the standard of care. It is also
important to understand how the standard of care is defined
in legal terms for any given patient, with any particular stage
of disease, in any hospital setting. The standard of care is
generally defined as the level of care that a qualified, careful
physician would do under the same or similar circumstances.
Several years ago, the standard of care included consideration of geographic location; for example, creation of a
transjugular intrahepatic portosystemic shunt (TIPS) in a
high-volume academic liver transplant center or an 80-bed
rural community hospital mattered in legal terms. However,
now the standard of care definition is a nationwide standard:
it makes no difference who created the TIPS, or which type of
facility, or where. Standards of care are not determined by
evidenced-based medicine, or published phase 1 clinical
trials, or key opinion leaders. Rather, the standard of care
is largely defined by your own peers who are comparable in
training and education and who are faced with the same or
similar clinical scenario. In a malpractice case, the standard
of care will be defined for the jury by the expert witnesses
who will testify for the defendant and plaintiff, respectively.
► medical malpractice
► medical error
► medical
► litigation
► interventional
Abstract According to a 2017 survey of 4,000 physicians across 25 different specialties in the
United States, 55% of respondents report having been sued at least once, with nearly
half of them having been sued multiple times. In addition, procedural specialists are far
more likely to be sued. As a procedural-driven specialty, interventional radiology (IR)
practitioners are subject to these statistics. While the focus of all IR practices is
providing the highest quality care safely and efficiently, medical errors and complications are unavoidable. Understanding the process of medical malpractice litigation is
necessary to develop strategies on how best to avoid and mitigate the hardships of the
Issue Theme Management of
Complications in IR; Guest Editor, Robert
K. Ryu, MD, FSIR
Copyright © 2019 by Thieme Medical
Publishers, Inc., 333 Seventh Avenue,
New York, NY 10001, USA.
Tel: +1(212) 584-4662.
ISSN 0739-9529.
This document was downloaded for personal use only. Unauthorized distribution is strictly prohibited.
Medicolegal “Nuts and Bolts”
The vast majority of medical malpractice lawsuits are filed in
state court, as opposed to federal court. If the defendant
physician is an employee of the federal government, other
avenues to resolve the dispute exist outside of state court.
Having established the legal venue, this review aims to
identify the common elements that must be alleged and
proven to succeed against an interventional radiologist.
There are generally two classifications of parties to a
medical malpractice suit. First, the patient who seeks compensatory damages from an IR is known as a plaintiff. The IR
from whom the plaintiff seeks damages is the defendant. In
some instances, multiple defendant medical providers are
namedwhere the plaintiff uses the “shotgun” approach, where
the plaintiff will name any and all potential individuals,
institutions, or business entities who may or may not have
played a direct or indirect role in the care of the patient during
the time the alleged injury occurred. As information about the
incident is uncovered (during a phase of the process called
“Discovery”), certain individuals, institutions, or entities may
be removed from the legal complaint. This often prompts a
deep sigh of relief from the IR who is removed from a
malpractice case. Unfortunately, this process can take months
to years, during which time the IR is subject to the intense
anxiety that comes with being party to a malpractice case.
All malpractice cases are composed of four elements that
must be alleged and proved: (1) the IR owed a duty to the
patient, (2) a breach of the duty occurs, (3) the breach is a
cause of an injury that is compensable, and (4) the patient
actually suffers an injury.
In order for an IR to owe a duty to a patient, it first requires
that the IR possess and use the knowledge, skill, and care
ordinarily used by a reasonably careful IR under the same or
similar circumstance. For example, where an IR agrees to
place a tunneled dialysis catheter in a patient with renal
failure, the IR owes a duty to the patient to place the tunneled
catheter as a reasonably careful interventional radiologist.
It is important to understand how “duty” is defined and
how published documents can impact the legal interpretation.
Clinical guidelines or practice parameters that are published
by medical associations or societies may be viewed as an
authority for the method of how the procedure is performed
or upon which patients the procedure is efficacious. The
substantive content of any particular society’s guidelines
may serve as additional evidence of a duty.
The Society of Interventional Radiology and other specialty medical organizations attempt to protect its members
with the preamble contained within its Practice Parameter2:
This document is an educational tool designed to assist practitioners in providing appropriate radiologic care for patients.
Practice Parameters and Technical Standards are not inflexible
rules or requirements of practice and are not intended, nor
should they be used, to establish a legal standard of care.
Some courts have held that published standards or guidelines of specialty organizations are useful in determining the
duty owed or the standard of care applicable in a given
A breach of duty occurs when the defendant fails to do
something a reasonably well-qualified interventional radiologist would do, or does something that a reasonably wellqualified defendant would refrain from doing. Expert testimony presented by the plaintiff is essential to prove both a
duty to the patient and that a breach has occurred. In the
example earlier, a breach of the applicable duty may occur if
there was inadvertent perforation of the superior vena cava
during placement of the tunneled dialysis catheter.
Once the plaintiff proves the first two elements, a duty to
the patient and a breach of that duty, the plaintiff must
establish that the negligent act caused an actual injury. This
element is the most troubling and legally challenging as the
defendant’s counsel may have knowledge of multiple other
potential causes for the patient’s injury or death. In the
example above, is it possible that a vascular injury could
have happened previously, or was not actually related to the
dialysis catheter placement? Were there existing conditions
that predisposed the patient to the injury may or may not
have occurred as a result of the procedure?
The Aftermath
If it is determined that the plaintiff did suffer an injury due to
a breach in duty owed, the plaintiff is entitled to damages,
usually defined as a sum of money. To calculate the total
amount of damages, the jury receives instructions to estimate how much the plaintiff is entitled to for (1) pain and
suffering and (2) disfigurement. The plaintiff is also entitled
to reimbursement for medical expenses incurred after the
injury, as well as lost wages (including consideration of a 3%
cost of living adjustment per annual year).
The damages become substantially higher in cases where
the plaintiff dies as a result of the injury. Damages would be
calculated by accountant retained by the plaintiff who
estimates the wages lost over the plaintiff’s expected lifetime, up to retirement at the age. The calculated damages
amount will include a value for loss of consortium, related to
the deceased plaintiff’s spouse and children under the age of
18 years.
Some states have a $250,000 cap on the amount of
damages for pain and suffering as well as disfigurement.
For example, the state of Illinois no longer has a cap on pain
and suffering damages. It is important to know whether your
state has caps or not since that will specifically dictate how
much malpractice insurance coverage you should carry.
Mitigating Risk
To mitigate the medical malpractice risk, an IR should obtain
an appropriate level of insurance. Consideration of the
jurisdiction in which the physician practices should provide
some guidance as to the amount of insurance coverage. If that
jurisdiction lacks a cap on noneconomic damages (such as
pain and suffering or disfigurement), one should consider
greater than $2,000,000.00 in coverage per occurrence. If the
Seminars in Interventional Radiology Vol. 36 No. 2/2019
118 A Primer to Understanding the Elements of Medical Malpractice Hill, Ryu
This document was downloaded for personal use only. Unauthorized distribution is strictly prohibited.
damages exceed the amount of malpractice insurance coverage, the IR physician is personally responsible for any excess
sum owed to the plaintiff. All assets that are not contained
within certain trusts, with the exception of some retirement
or pension accounts, are subject to seizure. However, this
process is state dependent. Consultation with an experienced attorney who specializes in trusts is recommended.
Direct and transparent communication with the patient
and family about complications and medical errors has been
shown to decrease the incidence of malpractice litigation.
“Apology” laws exist in 36 U.S. states, which mandate that
when a physician states “I’m sorry,” it is not admissible as a
statement of guilt or culpability in a court of law. A sincere
apology after a physician mistake decreases the likelihood of
subsequent legal action.3
It goes without saying that careful, contemporaneous
documentation of conversations, consultations, procedures,
and follow-up visits is required. In the age of the electronic
health record (EHR), remember that all of your documentation is available in perpetuity. It is also possible to track when
medical records or images are accessed. If you are named in a
legal action, do not access relevant medical records until
you’ve had a chance to discuss it with your legal counsel. Any
relevant notes or documentation outside of the EHR is
discoverable, meaning that they must be made available to
the plaintiff’s attorney.
Understanding the elements of a medical malpractice cause
of action and a means to mitigate the risk through careful
planning, documentation, and the purchase of appropriate
malpractice insurance is important information for the IR
practitioner. Understanding the length and breadth of medicolegal actions is the necessary first step to successfully
navigating the legal, financial, and emotional challenges.
Take-Home Points
1. Malpractice requires four elements: duty owed, duty
breached, an injury caused by the breach, and that the
patient actually suffered the injury.
2. Malpractice cases routinely take years to litigate; it is a
marathon, not a sprint. Prepare yourself mentally for a
prolonged, slow-moving process.
3. The standard of care is usually defined by the testifying
expert witnesses: what is the level of care provided by a
qualified, careful physician in the same or similar
4. Find out whether your state has caps on pain/suffering/
disfigurement; if not, you’ll need to carry more malpractice insurance to avoid losing unprotected personal assets.
5. A sincere apology after a patient injury decreases the
likelihood of subsequent litigation. Apologies are not
considered an admission of guilt in the 36 U.S. states
that have passed “Apology” laws.
The authors have no relevant financial disclosures.
1 Medscape. Available at:
2017-malpractice-report-6009206#1. Accessed February 16,
2 American College of Radiology; Society of Interventional Radiology; Society of Neurointerventional Surgery; Society of Pediatric Radiology. Practice parameter for interventional clinical
practice and management. J Vasc Interv Radiol 2015;26(08):
3 Witman AB, Park DM, Hardin SB. How do patients want physicians to handle mistakes? A survey of internal medicine patients
in an academic setting. Arch Intern Med 1996;156(22):

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