Legal malpractice

“ The better response is not to distinguish litigation malpractice from other kinds of malpractice, but to exempt all attorney-malpractice actions from the entire controversy doctrine. The Rules of Professional Conduct still require an attorney to notify the client that he or she may have a legal-malpractice claim even if [NJ443] notification is against the attorney's own interest. ”

“ So, if one is employed as a botanic physician, and performs his services with ordinary care and skill, in accordance with the system he professes to follow, that will be regarded as a legal defence to a suit for malpractice. It would show a full |53| compliance with his profession and undertaking, and if injury resulted to the plaintiff he could blame no one but himself (109) .
If a patient has not been deluded by any but himself, and voluntarily employs in one art a man who openly exercises another, his folly has no claim to indulgence. ”

“ Criminal Liability for Negligent Malpractice.—It is manifest that not every degree of negligence which causes death or injury ought to render the physician or surgeon liable to indictment and punishment for a crime. ”

“ If a physician does not bring to the treatment of an injury or of a disease the ordinary amount of skill possessed by those in his profession, it is immaterial how high his standing may be; if he has skill and does not apply it he is guilty of negligence, and if he does not have it then he is liable for the want of it. When a case of alleged malpractice is before the court, the questions to be considered are: Did the defendant possess the ordinary skill of persons acting as medical men? If he did, was he chargeable in not applying it in the treatment of the patient? ”

“ On the other hand, in cases of malpractice, damages for want of ordinary care and skill are recompensed as in any other cases of negligence. They may include loss of time of the patient, inability to earn his living, such sum as the jury thinks is reasonable to be given as a compensation for the extra pain and suffering, and, where the injury is permanent, such further sum as will indemnify the patient for the injury or deformity which he may suffer on account of the defendant’s neglect. ”

“ Contributory Negligence.—In conclusion it should be stated that the patient is bound to follow obediently all proper directions given him by his physician or surgeon, as to his diet, mode of life, time of taking and quantity of medicine to be taken, or the care of a diseased or injured member. Any disobedience of such directions which contributes to prevent a recovery will bar him from his right of action for malpractice, even though the medical man may have been somewhat negligent. ”

“ Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. ”

“ The loss of the petitioner's eye is a serious handicap. But damages may be recovered under the Jones Act only for negligence. Jamison v. Encarnacion, supra, 281 U.S. at page 639, 50 S.Ct. at page 442, 74 L.Ed. 1082. Whether the legislative policy of compensating only on the basis of proven fault is wise is not for us to say, nor is it our function to circumvent it by reading into the law a theory, however disguised, that a physician who undertakes care guarantees cure, and that each unsuccessful effort of the physician may be visited with a successful malpractice suit. ”

“ Part of the answer is that the insurance companies are scaring many doctors with spectres of litigation volume that simply does not exist.
Malpractice cases filed and actual payments in constant dollars have been level for many years; about nine of ten malpractice harms do not result in any law suits being filed, according to various studies. Yet the human toll is deadly. A Harvard study estimated that gross malpractice just in hospitals takes 80,000 American lives a year plus causing hundreds of thousands of serious injuries. ”

“ All agree that mere allegations of malpractice do not state a claim, and, while their terminology regarding what is sufficient varies, their results are not inconsistent with the standard of deliberate indifference. ”

“ But if we indulge plaintiffs the benefit of this comparison, claimants cite us no state, and we know of none, which has permitted members of its militia to maintain tort actions for injuries suffered in the service, and in at least one state the contrary has been held to be the case. [11] It is true that if we consider relevant only a part of the circumstances and ignore the status of both the wronged and the wrongdoer in these cases we find analogous private liability. In the usual civilian doctor and patient relationship, there is of course a liability for malpractice. ”

“ The various contentions concerning the alleged want of liability on the part of the defendant as the result of any asserted malpractice on the part of the surgeon or surgeons who operated upon the plaintiff, we are of opinion, are likewise devoid of all merit. The correctness of this conclusion is adequately demonstrated by a consideration of the text of the charge given by the court to the jury on the subject. ”

“ It is not necessary, in order to sustain an action against him for malpractice, that there should be proof of gross culpability on his part. He is on the same footing, and subject to the same degree of liability, as any other person who is engaged in the performance of services requiring skill and care. ”

“ As to the malpractice claim, the trial court held that the railroad would not be liable for any negligence on the part of Dr. Leigh, the physician it furnished petitioner. We need not pass on this issue, however, since we find no evidence sufficient to support a malpractice recovery. Proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff. ”

“ The tendency of the courts and of legal authority of the present time is, however, to limit as often as possible the cases in which punitive damages are allowed, upon the theory that if a grossly negligent act is committed it will require criminal prosecution, and that the [84] strong arm of the State should be invoked to punish the wrong, rather than to line the pocket of the injured person. ”

“ It may, I conceive, be truly said that, viewed in relation to an action for negligence, direct bodily impact is, without resulting damage, as insufficient a ground of legal claim as the infliction of fright. That fright—where physical injury is directly produced by it—cannot be a ground of action merely because of the absence of any accompanying impact appears to me to be a contention both unreasonable and contrary to the weight of authority. ”

“ The question of the amount of damages for personal injuries arising from malpractice is one resting a good deal in the discretion of the jury, and must of necessity be more or less uncertain. The party must recover all his damages, present and prospective, in one action. If the damages are so excessive as to strike all mankind, at first blush, as beyond all measure unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, corruption, or prejudice, the court will grant a new trial. ”

“ They also challenge the dismissal of all claims concerning NMC's use of Richard, arguing that Richard was an independent contractor of NMC.
The issue of whether a cause of action for negligent credentialing is a new tort or one that falls within the ambit of the Medical Malpractice Act is an issue of law. A circuit court's conclusions of law are not given deference on appeal. ”

“ Whenever death ensues as the alleged consequence of malpractice it becomes necessary to inquire into the conduct of the physician, so as to determine how far his want of skill, or negligence, has conspired to produce it. The offence may, under certain circumstances indicating a wanton and malicious disregard of human life, amount to murder. Of course, a medical practitioner who should intentionally, and with malice, cause the death of a patient, would be held guilty of this crime ”

“ Of course a medical man, unless he be an officer of the Government, charged with specific duties which he thereby violates, has a legal right to decline to take charge of a particular case. When in charge, however, he is liable for any negligence, whether of omission or commission, which may produce injury to his patient. ”

“ The physician does not, however, contract for freedom under all circumstances from errors of judgment. The man who possesses ordinary skill is presumed to have ordinary good judgment, and, if it be fairly and conscientiously exercised, and the case is one of reasonable doubt and uncertainty, any errors and mistakes are upon employers alone.
Such is the law in New York. In Maine, however, not so very long ago, a verdict of heavy damages against a physician for alleged malpractice in a case of amputation was sustained on appeal. ”

“ All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal duty or obligation has been violated. ”

“ Frequently physicians are accused of malpractice, and rather than undergo the expense and inconvenience of a suit they will submit to an extortion of money; or if a suit is lost in court through prejudice, unjust decisions, inability to secure good council or other unavoidable cause, rather than undertake to carry the case to a higher court, the physician will pay the damages, and thus establish a precedent which renders every physician under similar circumstances liable to a suit for damages. ”

“ Suits for Injuries to Married Women and Minor Children.—When the person injured is a married woman, her husband may sue for loss of services on account of malpractice, and when the injured person is a minor child the parent may sue as in any case of negligence. A third person, such as the husband of a woman injured by malpractice, or the father of minor child so injured, can only recover the value of the services thereby lost, and in some cases the enhanced expense of medical attention and nursing thereby rendered necessary. ”

“ The root of the evil in America is, as already pointed out, to be found in the system which allows parties to retain and pay their own experts without any substantial restrictions. Sooner or later, among the other reforms in our judicial system, it will be found necessary to reform this evil by the enactment of laws requiring that the witnesses in medico-legal cases, particularly those in which a crime is alleged to have been committed, shall be designated by the court, or by some public authority, and paid from the public treasury instead of by the parties. ”

“ Some of the most frequent cases of alleged malpractice, brought before the courts, are those in which it is claimed that a fractured limb has been improperly set, with the result that it becomes crooked or shortened ”

“ A second duty is that of proper diligence in treating every single case. Many a patient suffers injury to health or even loses his life in consequence of a Doctor’s neglect. Gross negligence is an offence that makes him punishable by the court, if it results in serious injury. But even if such injury cannot be juridically proved, or has been accidentally averted, the moral wrong remains and is to be settled with the all-seeing Judge. Still, in ordinary ailments, no one is obliged to take more than ordinary trouble. ”

“ And that, aside from such personal delinquencies as drunkenness, or gross negligence, cruelty towards, or abandonment of his patient, the field in which the physician discharges his professional duties is practically terra incognita to the unlearned, and one where no lay critic can follow him” (187) .
The same critic points out that the majority of suits for malpractice have been brought against surgeons and not against physicians. “Failure is rarely excused in a surgeon. ”

“ Now, if you find the facts as contended for by the plaintiff, I will ask you to say whether he was guilty of contributory negligence under the circumstances. Could he have protected or saved himself by the use or exercise of ordinary care? If he is to blame in part, or has in any manner contributed to his injury, he is not entitled to your verdict. The rule in negligence cases is that, while the defendant is held to exercise due and reasonable care under the circumstances, the plaintiff is also held to exercise the same degree of care, and if he does not do so, he cannot recover. ”

“ It derives, indeed, no small revenue from this disgraceful source, not only to the injury of the regular members of the profession, but to the imminent danger of the community also. In legal matters, no man can give you advice without being duly licensed to do so; but in medicine and surgery any man may prescribe the most deadly poison, or amputate a leg without the least authority, and, unless death result from his temerity, without being amenable to any penalty. ”