A Comprehensive Overview of Professional Liability & Malpractice

This essay provides a detailed overview of professional liability and medical malpractice, addressing key areas such as general liability, the reasonable person standard, standard of care, and duty of care for physicians. It outlines the responsibilities of healthcare practitioners concerning privacy, confidentiality, and privileged communication, further explaining the four essential elements necessary to prove negligence: duty, dereliction, direct cause, and damages. The essay also describes the phases of a lawsuit in medical malpractice cases and highlights two significant advantages of alternative dispute resolution methods over traditional litigation. The content is supported by references to relevant legal and medical sources, providing a comprehensive understanding of the legal and ethical considerations in healthcare.

Running head: PROFESSIONAL LIABILITY AND MEDICAL MALPRACTICE
PROFESSIONAL LIABILITY AND MEDICAL MALPRACTICE
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PROFESSIONAL LIABILITY AND MEDICAL MALPRACTICE
General Liability of Physicians
General liability is a must have insurance for all small business and if a doctor has his
or her own business in their offices then insurance is mandatory in order make patients safe
and secure. General Liability insurance includes premised liability, products liability and
complete operations (USA Business Insurance, 2018). Premises liability insurance belongs
to commercial general liability insurance. It takes care of the service users’ interest. For
example, if a patient is injured in an automobile accident and have visited the doctors’ clinic
for treatment then the premises liability will pay for the costs which will be incurred in order
to receive the medical treatment. This coverage is also applicable for property damage (USA
Business Insurance, 2018). Products liability is applicable if the physicians also sell
medicines. If a patient is harmed or injured after consuming or using the medical products
purchases from the clinic of the concerned physicians and damage cost will be payable under
the products liability (USA Business Insurance, 2018). Completed operations coverage
protects the office of the physicians from the lawsuits that mainly arise after the doctors have
complete services or any medical operations on the patients. Completed operations insurance
refunds for the litigation expenses, settlements and damages (USA Business Insurance,
2018).
Reasonable Person Standard
Reasonable Person Standard is a critical test that is used to state the legal duty in order
to safeguard one’s own interest or other associated with that interest. The standard demands a
person to act with the equal degree of knowledge, care, experience, fair mindedness and
complete awareness about the prevailing law, which the community would expect out of
certain hypothetical yet reasonable person. In relation to bioethics, under reasonable person
standard, a patient will be informed about the material risk associated that would influence a

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reasonable person in selecting whether to provide informed consent in the treatment (Man,
2013).
The Standard Care
The concept of "the standard of care" is popular among the healthcare professionals
and the legal definition of the standard of care is guided by clinical practice guidelines. The
applicable standard of care under medical malpractice lawsuits differs among the
jurisdictions in the United States. The locality rule requires defendant physicians to deliver
same level of skills and care that is required by the other doctors practicing in the same or
similar community. This lawsuit mainly places a defined geographical dimension over the
prevailing professional standard of care in the medical negligence litigation (Moffett &
Moore, 2011).
Duty of Care
Physicians have a legal responsibility to deliver standard care with skills to their
patients. The lawful duty of care is generated when the physicians agrees to treat the patients
who have availed his or her medical services. While determining what duty of care the said
patients require, the physicians should take into consideration whether the care they are
providing is what the "reasonable physician" would deliver under the similar circumstances.
It is important that a healthcare specialists exercise a higher level of skill in the domain of
their expertise (Davies & Shaul, 2010).
Responsibilities of healthcare practitioners
Confidentiality in healthcare generally refers to the obligation of the healthcare
practitioners who have adequate access to the patient's personal or health-related records in
order to hold that information in confidence. This complete professional obligation to secure

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confidentiality of the health related information is further supported under the professional
association codes of ethics, American Health Information Management Association Code of
Ethics. The act of confidentiality is recognized by law as privilege communication between
the healthcare professionals and patients or their family members in order to develop
professional relationships (Farnan et al., 2013).
Privacy is different from confidentiality as viewed under the light of right of the
individual client or the service users. The privacy mainly defines the onus of the service users
or patients to let alone and to take decision about how the personal information is shared with
others. However, U.S Constitution does not clearly specify a "right to privacy". The privacy
rights with respect to the individual healthcare decisions differ under the federal and state
statutes. The Health Insurance Portability and Accountability Act of 1996 guide the privacy
rights of the patients in United States (Farnan et al., 2013).
It is the duty of the healthcare practitioners to conserve the privacy and confidentiality
right of the patients through the applicable of the privileged communication. The personal
information and the health related information of the patients should be kept confidential and
must only be disclosed under the informed consent of the patients. It also satisfies the ethical
concept of privacy. This is applicable while managing the patient’s data through the
electronic medical records (EMRs) (Farnan et al., 2013).
Four elements necessary to prove negligence
Four “D”s of negligence includes Duty, Dereliction, Direct Cause and Damages.
Duty: The person who was on duty was found guilty. In other words, it can be said that the
person who owned the duty of care to the accusing patient is found negligence.

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PROFESSIONAL LIABILITY AND MEDICAL MALPRACTICE
Dereliction: Dereliction signifies that the healthcare provider breached the duty of care to the
concerned patient.
Direct cause: Direct cause means that the healthcare practitioner who was found guilty is the
direct cause of the patient’s injury.
Damages: It signifies that there is significant injury to the patient, which is noticeable
(Hall et al., 2018)
Phases of lawsuit
Medical malpractice cases can be defined as an example of one particular type of tort.
Here tort is regarded as "negligence". The theory of negligence is defined by the fact that
people should be careful and accountable in what they do and if gaps or negligence is found
in their duty and they should be held responsible for that loss (Rothman, 2017).
The first phase of filing medical lawsuit requires the injured person to prove that he or
she have received substandard medical care which has caused to the subsequent injury. This
deals with a number of steps. Firstly, the person who is harmed during process of treatment
must determine whether or not they are harmed by the inappropriate care. Physicians or other
healthcare practitioners are not legally abided by to inform the patients that they are hurt by
the medical care, it is the independent call of the patients or their family members. Patients
who are under multiple healthcare providers is require to determine which of the care plans
have contributed to the injury (Rothman, 2017).
After the determination of the patients, a malpractice case can be brought within the
legally prescribed period known as "statute of limitation". Once the patient highlights
malpractice lawsuit, the person (plaintiff) is required to show that they are actually under the
care of those particular physicians they are charging. In other words, patients-physicians

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relationships must be established. The next line-up in the requirement is the heart of a
negligence lawsuit. In this, the plaintiff must highlight that physician failed to deliver medical
care that is as per the standards. Even if the physician is found to provide substandard care,
the concerned plaintiff is required to prove himself that the substandard care has caused their
injury. The final step in filing lawsuit for medical malpractice is establishment of the amount
of money, which should be awarded to the wining plaintiff (Rothman, 2017).
Alternative Dispute Resolution
There are a number of advantages of Alternative Dispute Resolution in general over
litigation. Two main advantage of alternative dispute resolution is it is fast and comparatively
less costly. Here the people have a chance to tell their own story in their own perspective.
The overall concept is more flexible and responsive towards the individualized need of the
people (Man, 2013).

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References
Davies, C. E., & Shaul, R. Z. (2010). Physicians’ legal duty of care and legal right to refuse
to work during a pandemic. Canadian Medical Association Journal, 182(2), 167-170.
Farnan, J. M., Sulmasy, L. S., Worster, B. K., Chaudhry, H. J., Rhyne, J. A., & Arora, V. M.
(2013). Online medical professionalism: patient and public relationships: policy
statement from the American College of Physicians and the Federation of State
Medical Boards. Annals of internal medicine, 158(8), 620-627.
Hall, M. A., Orentlicher, D., Bobinski, M. A., Bagley, N., & Cohen, I. G. (2018). Health care
law and ethics. Wolters Kluwer Law & Business.
Man, H. (2013). Medical Malpractice Liability. In Legal and Forensic Medicine (pp. 605-
619). Springer, Berlin, Heidelberg.
Moffett, P., & Moore, G. (2011). The standard of care: legal history and definitions: the bad
and good news. Western Journal of Emergency Medicine, 12(1), 109.
Rothman, D. J. (2017). Strangers at the bedside: a history of how law and bioethics
transformed medical decision making. Routledge.
USA Business Insurance. (2018). Business Insurance for Doctors and Family Practitioners.
Access date: 12th November 2018. Retrieved from:
https://www.businessinsuranceusa.com/business-insurance-doctors