Special Report: Standards of Medical Misconduct: What are they and why are they important?
Standards of Medical Misconduct: What are they and why are they important?
By William Sullivan, DO, JD, FACEP, FCLM, Contributing Editor
You may hear phrases such as "gross negligence" and "willful and wanton misconduct" stated by the media, but these terms also are important for many health providers in that they can limit liability for providing medical care. While the laws of each state differ, in general, there are several ways in which wrongful actions may be categorized. These classifications, detailed below, include: negligence, gross negligence, willful and wanton misconduct, and intentional acts.
Negligence. Failure to exercise reasonable care is considered "negligence." In the medical malpractice setting, "negligence" is synonymous with "failing to act within the standard of care." A physician who does not act as a reasonably well qualified physician would act under the same or similar circumstances is negligent and may be liable for damages if the physician's negligence caused the patient's injuries. The negligence standard is used for most medical malpractice lawsuits.
Gross Negligence. Gross negligence is more serious than negligence. Court opinions and legislation provide multiple definitions of the term "gross negligence." These definitions include:
- "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results;"1
- "failure to exercise slight care or diligence;"2 and
- an "entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it."3
The term "recklessness" is sometimes used in statutory language and seems to equate to "gross negligence." For example, Florida's Good Samaritan Act defines "reckless disregard" as conduct that a health care provider knew or should have known, at the time such services were rendered, "created an unreasonable risk of injury so as to affect the life or health of another."4 The statute specifically notes that the risk caused must be "substantially greater than that which is necessary to make the conduct negligent." An Illinois court decision also noted that "the difference between reckless misconduct and [negligent conduct] is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind."5
Willful and Wanton Misconduct. Willful and wanton misconduct generally means that someone knew that an injury was likely to result from an action and, despite this knowledge, acted with a conscious disregard toward the safety of another person. Proving willful and wanton misconduct is much more difficult than proving simple negligence or gross negligence (although some courts have held that gross negligence is similar to willful and wanton misconduct).
Legal definitions of willful and wanton misconduct include the following.
- "Actual or deliberate intent to harm" or an "utter indifference to or conscious disregard for ... the safety or property of others."6
- Conscious disregard of another's rights, or with reckless indifference to consequences that the defendant is aware, from his knowledge of existing circumstances and conditions, would probably result from his conduct and cause injury to another.7
- Willful and wanton negligence, unlike gross or ordinary negligence, requires an actual or constructive consciousness that injury will result from the act or omission.8
Intentional Acts. Finally, an intentional act ("tort") is an act of which the outcome is known and the actor wants the outcome to occur. Assault and battery are two examples of intentional torts. The difference between willful and wanton misconduct and intentional actions is sometimes difficult to determine. Intentional acts are those that someone wants to occur, while willful and wanton actions imply that an injury was likely to occur and the person "just didn't care" what would happen.
One example of an intentional medical tort occurred when an obstetrician carved his initials into a patient's abdomen after delivering her newborn baby.9 The surgeon knew (or should have known) that the patient would have a scar and intended to cause the scar, as was evidenced by his initials on the patient's abdomen. The hospital and physician in that case settled the lawsuit for a total of $1.75 million.10
Applicability. Public policy favors encouraging people to help others in need. For example, the federal government allows us to write off charitable contributions on our taxes. If the charitable tax deduction was removed, it is likely that fewer people would donate items to charity.
The same public policy arguments can be made when encouraging people to provide medical care to those in need. Every state has a "Good Samaritan" statute that limits the liability of those who help someone in a medical emergency.11 Were these statutes not in place, bystanders might reconsider a decision to stop and help others for fear of being sued if they did something "wrong." Similarly, states have statutes that protect "first responders" from liability when they respond to 911 calls and transport patients to the hospital. Were medics and paramedics held responsible for any perceived "negligent act" while attempting to stabilize and transport a patient, fewer people would be willing to provide such care. The ability to receive prompt care would then diminish as fewer and fewer first responders would chose to be subject to liability, and the amount of bad outcomes from the delays in medical care would increase.
However, the protection provided to Good Samaritans and first responders is not absolute. While protected from liability for negligent actions, the statutory protection generally does not apply to care that is considered "willful and wanton." One example of a court decision holding that healthcare providers had engaged in willful and wanton misconduct occurred when a patient called 911 complaining of an asthma attack; the patient told the dispatcher that she thought she was "going to die." Paramedics went to the scene, knocked on the door, and then left the scene when no one answered. Later, it was learned that the door was unlocked, that the paramedics violated basic training procedures by not attempting to open the unlocked door, and that the patient inside had indeed died from her asthma attack.12
First responders have been sued for delaying intubation;13 for performing incorrect intubation (i.e., intubating the esophagus);14 and for administration of D50 into an infiltrated IV line that ultimately resulted in an ulnar nerve injury.15 In each case, the courts held that these errors did not amount to willful and wanton misconduct and were, therefore, nonactionable. In another case, failure to institute prompt fetal monitoring on an assaulted pregnant patient in the emergency department was not considered willful and wanton misconduct, even though the fetus eventually died from undiagnosed abruptio placenta.16
Medical Malpractice. Many states have realized that the public policy arguments used to protect Good Samaritans and to ensure the availability of prompt medical transport also can be used to help ensure that emergency physicians and on-call physicians continue to remain available. In the current system, specialists may simply refuse to provide on-call coverage for emergency patients rather than to risk massive malpractice judgments for treating patients whom they have never seen before, who may not pay them, who may not be compliant with treatment, and who may never be seen again. Because fewer and fewer specialists are willing to provide on-call coverage, some patients with emergency conditions are having a difficult time finding appropriate care.
For example, before a medical malpractice plaintiff can prevail in Florida, the plaintiff must prove that the physician's medical care demonstrated "a reckless disregard for the consequences so as to affect the life or health or another."17 The statute defines "reckless disregard" as conduct that "would be likely to result in injury so as to affect the life or health of another ..."18 One case in which a Florida court held that an on-call surgeon engaged in intentional misconduct occurred when a surgeon refused to come to the ED to drain an abscess. During his deposition, the surgeon stated that he felt "insulted" to be called in to drain a small abscess. The abscess was the focus of an infection that resulted in the patient developing toxic shock syndrome that ultimately caused her death.19 The court held that the plaintiffs in the case were entitled to seek punitive damages against the defendants (punitive damages in Florida are only applicable to intentional misconduct).
Similarly, Georgia law currently requires that malpractice actions arising out of care provided in an emergency department or obstetrical unit must be proven "by clear and convincing evidence that the physician or health care provider's actions showed gross negligence."20 Georgia Senate Bill 286 is currently pending in the Georgia General Assembly and seeks to amend the Georgia statute to reduce the standard of proof back to ordinary negligence.
Many state statutes also limit noneconomic damages for medical malpractice cases but do not apply those limits if the health care provider engaged in willful or wanton misconduct. Here are some examples.
- South Carolina statutes limit noneconomic damages in medical malpractice cases to $350,000 against a single health care provider, but those limits do not apply if there has been "willful negligence or misconduct" (§15-32-220).
- Alaska statutes limit noneconomic damages to $250,000 or to $400,000 for wrongful death or injuries that are more than 70% disabling; however, those limits do not apply to intentional or reckless acts or omissions (§09.55.549).
- Pennsylvania statutes allow awards of punitive damages against health care providers, but only upon proving willful misconduct or reckless disregard (§40.1301.812-A).
Note that a health care provider's knowledge is an important aspect in determining whether willful and wanton misconduct has occurred. Placing a hypotensive patient on a nitroglycerin drip might be considered willful and wanton misconduct; however, if the health care provider was a new nurse who thought that the nitroglycerin was an antibiotic, the conduct might instead be considered negligent. Similarly, administering an antibiotic to a patient after being told that the patient has an anaphylactic reaction to that antibiotic might be considered willful and wanton misconduct, while administering the antibiotic might be considered entirely appropriate if the health care provider is told that the patient has no allergies.
Conclusion. Some state legislatures have categorized wrongful actions occurring during the medical treatment of patients into different levels of culpability to provide some protection to health care providers. By increasing the standard of proof in medical malpractice to one of willful and wanton misconduct, legislatures make it more difficult to hold health care providers liable for medical malpractice. These statutory protections reinforce the public policy that assuring providers are available to provide medical care is equally if not more important than assuring that medical care is provided "perfectly" under all circumstances. Expert witnesses who testify about the standards of medical practice should thoroughly consider the significant differences between simple negligence and willful and wanton misconduct and should never equate, or even approximate, these two standards.
Increasing the threshold for malpractice actions against on-call specialists to a standard of "recklessness" is one of the strategies that the American College of Emergency Physicians (ACEP) On-Call Task Force is considering to help ease the crisis in providing on-call care to emergency department patients. States experiencing an on-call crisis may consider whether such a statutory amendment could improve the accessibility of care for its citizens.
1. M.C.L. § 600.2945(d)
2. Draney v. Bachman, 138 N.J. Super. 503 (1976)
3. Burk Royalty Co. v. Walls, 616 S.W.2d 911 (1981)
4. Fla. Stat. §768.13 et seq.
5. Henry L. Burke v. 12 Rothschild's Liquor, 593 N.E.2d 522 (1992)
6. Pfister v. Shusta, 657 N.E.2d 1013 (1995)
7. Harris v. Harman, 486 S.E.2d 99 (1997)
8. Infant C. v. Boy Scouts of America, Inc., 391 S.E.2d 322 (1990)
9. Wong E. Doctor Carved His Initials Into Patient, Lawsuit Says. The New York Times, Jan. 22, 2000. http://query.nytimes.com/gst/fullpage.html?res=980CE4D6103DF931A15752C0A9669C8B63. Accessed on 2/27/08.
10. Illinois Trial Lawyers Association. Vested interest. Tort Briefs. March/April 2000 issue. http://www.iltla.com/vi-torts-march-april-00.asp. Accessed on 2/27/08.
11. State statutes extending qualified immunity protections to health care professionals who furnish emergency-related health care. October 2007. http://healthyamericans.org/reports/bioterror07/2007StateComparisonTable.pdf. Accessed on 2/27/08.
12. American National Bank & Trust Co. v. City of Chicago, 735 N.E.2d 551 (2000)
13. Dunlap v. Young, 187 S.W.3d 828 (Tex. App., 2006)
14. Fagocki v. Algonquin Fire Protection Dist., 496 F.3d 623 (7th Cir., 2007)
15. Falkowski v. Maurus, 637 So.2d 522 (1993)
16. State v. Wickstrom, 405 N.W.2d 1 (1987)
17. Fla. Stat. §768.13(2)(b)1 (2000)
18. Fla. Stat. §768.13(2)(b)3 (2002)
19. Aleman v. Lifemark Hosps. of Fla., Inc., No. 02-04540 CA 30 (Fla., Miami-Dade Cir. Ct. Apr. 18, 2003)
20. O.C.G.A. § 51-1-29.5You may hear phrases such as "gross negligence" and "willful and wanton misconduct" stated by the media, but these terms also are important for many health providers in that they can limit liability for providing medical care.
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