For any physician, the word “negligence” carries a heavy weight. It can feel like an accusation of carelessness or a moral failing.
However, as discussed in a recent medicolegal conversation among physicians on Sermo, duty of care in medical negligence is about a technical standard. “Negligence is a legal issue, not an insult or moral failing,” they write. When you understand the legal machinery behind malpractice claims, you can protect yourself and your practice.
This article highlights Sermo members’ real-world conversations about medical negligence. It’s a glimpse into the candid, peer-to-peer discussions that happen within Sermo’s global community of over 1 million verified physicians.
If you’re a doctor interested in discussing topics like these with your peers—or want a space to pressure-test decisions and share real-world experiences—join Sermo to take part in the conversation and learn from colleagues who have walked in your shoes.
Disclaimer: This article reflects real conversations taking place within the Sermo physician community and is published for educational purposes only. It does not constitute legal or medical advice. The information provided is general in nature; laws governing medical malpractice, standard of care, and liability vary significantly by jurisdiction. Physicians should contact a qualified legal representative for advice specific to their circumstances. Quotes from community members have been anonymized.
What constitutes medical malpractice?
The term “malpractice” gets used often, but its legal definition is precise. In a recent discussion on Sermo, physicians unpacked a common misconception: while “negligence” carries a moral connotation in everyday language, in malpractice law it is a technical standard. Legally, negligence refers to whether the accepted standard of care was met—not whether a physician was careless, incompetent, or ill-intentioned.
The discussion on Sermo emphasized a crucial nuance: although physicians do have a heightened duty of care due to their fiduciary relationship with patients, negligence is always evaluated in context. It takes into account available resources and real-world clinical circumstances. Ultimately, the takeaway from the community was that negligence and standard of care are inseparable legal concepts. They are designed to assess whether care was reasonable, not whether outcomes were perfect.
To successfully prove a malpractice claim, a plaintiff must establish four essential legal elements. If any one of these is missing, the case generally fails:
1. Duty
This is the foundation of the relationship. A duty of care arises when a doctor-patient relationship is established. Once you agree to treat a patient, you have a legal obligation to provide care that meets accepted medical standards. Doctors must obtain informed consent prior to treating patients as part of their duty of care.
2. Breach (of the Standard of Care)
This is the pivot point of most litigation. A breach occurs when a physician fails to act as a reasonably prudent doctor would have under similar circumstances. This is not about being the best doctor in the world; it’s about not falling below the baseline of acceptable practice.
The discussion on Sermo illustrated how peer dialogue sharpens legal understanding. “Negligence occurs when a misdiagnosis is made or when standard medical practices are not followed,” writes a physician on Sermo. Another physician with legal experience replied and clarified: “The second is correct but a misdiagnosis is not necessarily negligence. The issue would be whether it occurred as a result of failing to follow the Standard of Care.”
3. Causation
This is often the most complex element to prove. It is not enough that a doctor made a mistake; that mistake must be the direct cause of the patient’s injury. If a patient would have suffered the same outcome regardless of the error, legal causation may not exist.
4. Damages
Finally, there must be actual harm—physical, emotional, or financial. This is because the purpose of a civil lawsuit is to make the plaintiff “whole”. There must be damages that can be quantified and compensated.
Malpractice is distinct from an unfortunate but expected complication. Medicine is an uncertain science. Poor outcomes can happen even when the best care is delivered. A known complication of surgery, for example, is not malpractice if the procedure was performed correctly and the risk was disclosed. Malpractice requires a deviation from the standard, not just a bad result.
Negligence in the legal setting and in medicine
In the Sermo discussion, physicians worked to disentangle the emotional connotations of “negligence” from its legal definition.
“‘Negligence’ in the legal setting is what lawyers call a ‘term of art,’” notes a Sermo member with medicolegal experience. “That means a word or phrase that has a precise, specialized meaning within the profession.”
This “term of art” status means that what feels like a personal attack is, in the courtroom, simply a question of metrics. Did action A meet standard B?
Physicians also discussed the role of intention. In malpractice law, negligence is unintentional by definition. “Negligence only looks to whether a standard was met so a lack of intention does not matter if such a lapse occurs,” the physician explains. “The presence of intention to do harm actually takes wrongful conduct out of the scope of negligence and into torts (or even actual crimes) such as assault and fraud.”
This means you can be technically negligent while trying your absolute hardest to help the patient. Gross negligence is different. The term implies conduct that is so reckless it demonstrates a frank disregard for the well-being of the patient. While ordinary negligence is a mistake, gross negligence is a severe departure from any reasonable standard of conduct. A wrong diagnosis arrived at through a thorough, standard-compliant workup is often defensible. It is the failure to investigate, the failure to listen, or the failure to follow up that typically cements a negligence claim. One physician on Sermo sums it up by saying, “negligence is about a result – it means failing to meet an accepted standard of conduct.”
The standard of care, explained
One study defines the standard of care in the U.S. as “the degree of care a prudent and reasonable person would exercise under the circumstances.” While the exact definition of standard of care varies by state, most follow a national standard requiring that the level of care within the context of the circumstances of the case would be recognized as reasonable or appropriate by a prudent healthcare provider, the study notes.
Doctors are held to a higher standard than most professionals because the stakes are life and death. Doctors on Sermo emphasize that physicians are fiduciaries for their patients and are therefore bound to the highest levels of trust and care.
This fiduciary duty requires that you must act solely for the patient’s benefit, placing their health interests above your own financial or personal interests.
Why does retrospective bias matter in duty of care and liability assessments?
Retrospective bias—the tendency to view past events as having been predictable—is a massive hurdle in malpractice defense.
The bias stems from a simple principle: only people with a poor outcome sue. When a jury looks at a case, they already know the negative outcome happened. This knowledge colors their perception of the doctor’s decisions. Steps that seemed reasonable at the time might look like obvious errors when you know the ending. One study found that when physicians analyzed three case studies, they exhibited hindsight bias in two of the three (i.e., they were more critical of the physicians’ quality of care when they knew a patient died vs. survived).
However, the law tries to account for this. The standard of care is what a reasonable physician would do at that moment, without the benefit of hindsight. Within the Sermo discussion, it was emphasized that attempting to establish negligence by asking a defendant physician, “If you knew then that this was (the serious condition being sued about), would you have done anything differently?” is not permissible.
Joint and several liability risks
Even when you feel your contribution to an adverse outcome was minimal, the legal concept of joint and several liability can pose a significant financial threat.
In jurisdictions that apply this rule, if multiple defendants (e.g., the hospital, the surgeon and the anesthesiologist) are found responsible for a patient’s injury, each defendant can be held liable. If the other defendants cannot pay their share (perhaps they are uninsured or bankrupt), you could be on the hook for 100% of the judgment, even if the jury found you only 10% at fault.
Another concept to be aware of is respondeat superior (“let the master answer”). This doctrine holds employers (like hospitals or private practice owners) legally responsible for the wrongful acts of their employees or agents, provided those acts occurred within the scope of employment. While this often shifts the financial burden to the employer’s insurance, it emphasizes that negligence isn’t just an individual risk.
Documentation as the primary defense against medical malpractice
Documentation showing that you met the standard of care can help shield you from medical malpractice claims. In the absence of a clear medical record, the case becomes a “doctor-said, patient-said” debate, and juries often sympathize with the injured patient.
Practical documentation strategies include:
- Timely charting: Late entries can appear suspicious. Ensure to chart as close to the encounter as possible.
- Clarity on diagnostic reasoning: Don’t just list the diagnosis; list why you arrived at it. Explain why you ruled out the dangerous differentials. For example, if you considered a pulmonary embolism but decided against a CT scan because the Wells score was low, make sure that decision process is recorded.
- Informed consent: Document the discussion with your patient of the risks, benefits, and alternatives to your recommended treatment plan.
- Non-compliance: If a patient ignores your advice and is non-compliant, document it.
The Sermo discussion highlighted the importance of that final point. “It is agonizing when a patient becomes negligent such as stopping their blood pressure meds because their neighbor told them to or ignoring our repeated phone calls and letters to contact us about their labs and studies,” writes a doctor on Sermo. “…but we doctors just do the best we can.”
In response, another physician clarified a potential medical negligence defense: “That is contributory negligence by them in some states and comparative negligence by them in most. Document your efforts to get them to comply and discharge them if they refuse.”
If you terminate the doctor-patient relationship, documentation is critical. You should clearly state the reasons for termination, the notice provided and the resources offered to find a new provider to avoid claims of patient abandonment.
Key takeaways for doctors
Based on insights from the Sermo community, here are the direct implications of medical negligence risks for your practice:
Communication is risk management
Often, the most effective risk management is clearly defining the scope of your interaction. This is particularly relevant regarding “curbside consult risk.” If a colleague asks you a quick question about a patient you haven’t seen, be extremely careful. Offering specific advice can inadvertently establish a doctor-patient relationship and a duty of care. Always qualify your advice or decline to give specific treatment recommendations without a formal consult.
Define the boundaries
Prevent the legal formation of a duty where none was intended. Be clear when you are off the clock, or when a relationship has not yet been established.
Documentation is defense
Clarity in documentation, especially when declining care or transferring a patient, is paramount. Your notes may help build your defense.
The foundation of patient safety
The concept of duty of care is the foundation of patient safety, but also your strongest defense against unfounded negligence claims. By understanding the legal definitions, you can practice with greater confidence and clarity. Proactively managing the doctor-patient relationship’s boundaries is the most effective form of preventative medico-legal defense.
On Sermo, physicians learn from one another’s experiences—across specialties, countries and legal systems. Whether it’s sharing a tip on how to document a difficult patient interaction or debating the finer points of liability, the collective wisdom of the Sermo physician community can serve as a resource.
This article has been medically reviewed by a member of the Sermo physician community.
