Lamson, Dugan and Murray, LLP, Attorneys at Law

What is Malpractice?

Posted in Litigation Tips, Medical Malpractice

What constitutes “malpractice?”  If a patient slips and falls while at the doctor’s office, does that implicate professional negligence?  Generally speaking, malpractice is defined as treatment by a doctor in a manner contrary to accepted standards of care which results in injury to the patient.  In Nebraska, medical malpractice and professional negligence are defined as follows:

“Malpractice or professional negligence shall mean that, in rendering professional services, a health care provider has failed to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in his or in similar localities. In determining what constitutes reasonable and ordinary care, skill, and diligence on the part of a health care provider in a particular community, the test shall be that which health care providers, in the same community or in similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances.”

In other words, malpractice occurs when, in the course of rendering professional services, a provider does something a reasonable provider in the same situation wouldn’t do, or fails to do something that a reasonable provider in the same situation would do.  But what does that tell us about the patient who falls or obtains an injury from an act that does not, at first blush, seem to have much to do with the treatment being sought?

The Nebraska Supreme Court has examined the issue and found it persuasive that a patient-physician relationship was the stimulus for the action at issue.  With the existence of a patient-physician relationship established, a reviewing court will look to the very act in question, and the circumstances surrounding that treatment.  This rationale has been applied by various courts in a multitude of situations that would seem not to involve actually performing professional services, such as a jolting of the patient’s neck when the headrest of the examination table struck the patient; performance of a blood test; slip and fall in a hospital when the patient was ordered to walk to a gurney without any assistance; and a slip and fall on a wet bathroom floor during post-surgical confinement.  All of these actions were deemed to be professional malpractice.

Why does this matter?  As we discussed in my previous posting, if the proverbial slip and fall in the examination room is deemed to implicate professional negligence, then there is a shorter statute of limitations: two years for professional malpractice versus four for ordinary negligence.  Further, generally speaking, in a professional malpractice lawsuit, the plaintiff must prove his or her case with the aid of expert testimony.

In an attempt to dodge the shorter limitations period, it is not unusual to see the lawsuits framed in terms of assault and battery, breach of warranty, or some other creative theory.  Fortunately, no matter how the actual lawsuit is phrased, if it involves a breach of a professional duty, it is a malpractice claim, and the shorter statute of limitations applies.

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