Estimated reading time: 6 minutes
By Enbastet, MD, JD
For doctors, navigating the language of the law—where reses are ipsa loquitoring, superiors are respondeating, facies are prima or not, and your duces tecuming is subpoena—can seem overwhelming, but where doctors actually run into trouble is in understanding the meaning of fundamental legal terms that sound like ordinary language.
This article will provide clarity on the 3 terms that all physicians must comprehend: negligence, the Standard of Care, and breach.
That understanding is essential for sustaining your own peace of mind and working most effectively with your lawyer if you are sued, and for protecting yourself in advance to prevent a lawsuit.
Understanding medical malpractice terminology
The language of a malpractice action is grounded in what are referred to as “terms of art”. These are terms that have specific meanings to lawyers. However, unlike hoary Latin, they use common colloquial words, and so doctors misinterpret them and then end up feeling angry or distraught at a sense that they are being called immoral or incompetent.
It makes the process feel harsher, and defense attorneys, who, after all, know what they mean when they use these terms, do not pick up on this problem to assist the doctor in approaching their own case with the perspective that that doctor really needs.
Let’s therefore look at the three most important terms for a doctor who is being sued, or who wants to protect themselves in advance, needs to understand.
The first is “negligence”.
What is medical negligence in malpractice?
As commonly used, it conjures up someone who is unthinking or slipshod, who does a job poorly because they just do not care to do it well.
In tort law, though, it does not mean that at all. It refers solely to not meeting an accepted level of performance.
In medicine, therefore, negligence is not providing a patient with appropriate care. If that lapse is then associated directly to damages, that negligence then becomes actionable malpractice.
What this actual definition then importantly means, and what a doctor who is feeling that the term is offensive can misunderstand, is that a doctor can be acting with real care and good intentions for their patient but still fall short of what is required. Negligence is therefore not a moral judgment of the doctor’s worth as a physician – it is solely a description of one specific piece of conduct and its metrics.
This then segues to the second essential term, which is “Standard of Care”.
What is the Standard of Care in a malpractice case?
Doctors will usually think that because this term literally capitalizes “Standard” that this is a judgment pitting what they actually did against some cookbook rule, but as a matter of law it is very different from that.
The definition of the term in a law dictionary refers to the level of care, skill, and treatment that a reasonably prudent healthcare professional with similar training would provide under similar circumstances. The most important part of that definition is therefore how flexible it really is. In fact, when an expert witness is being examined about their opinion, the doctor’s attorney will ask them to affirm that the doctor followed “good and accepted medical practice” at the actual time, and in the actual place, of the care.
Now we have established that negligence does not mean sloppiness and that the Standard of Care takes real life into account, so let’s go to the last of the essential terms that doctors find inflammatory or insulting: “breach”.
What does “Breach” mean in a malpractice claim?
This comes up in the basic elements of a malpractice action, and most doctors will know that those are a fiduciary duty to the patient’s welfare, a breach of that duty, and that that breach caused the injury that the patient is now claiming. However, the word itself carries a connotation of dishonest intent, of reneging on an obligation.
That is not how it is intended in the medical malpractice setting, though. There, it is just a reference to a duty that was not met. It carries no ethical implication and can encompass a real effort to act correctly that still fails to meet requirements just as much as it can encompass not making a good effort at all. It only describes the end point of the duty going unfulfilled.
The take-home lesson if you are being sued is therefore that this is not about you being unworthy as a doctor – it is about a moment in time when it is being alleged that the care that you gave should have been different. If you keep that in mind, you can help your attorney best understand how to defend you, and you will be best positioned to defend yourself when you testify.
Then, as I’ve mentioned at the start, understanding these terms is also important to avoid being sued at all.
How understanding malpractice terms protects you
When you begin with knowing that “malpractice” refers to a failure to fulfill the task of acting medically appropriately under the circumstances that you are actually in, you can both reverse engineer what you choose to do to see if it is defensible on its own merits, and how you document it, to conform to that.
| Term | Physicians should remember |
| Negligence | This is not providing good and accepted medical care. It does not mean that the care was slipshod, only that it did not meet requirements. |
| Standard of Care | This is the care that a comparable prudent practitioner would provide in similar circumstances. It is not a rigid cookbook requirement. |
| Breach | This is not fulfilling the duty of care to the patient under the circumstances. It does not mean that the doctor reneged on that duty, only that it was not met. |
Malpractice law never requires you to be perfect – it requires you to be reasonable, so whether you are defending a current case or trying to avoid one, keep that in front of you.
This article reflects the personal experiences and perspectives of the author. The views and opinions expressed are their own and do not necessarily represent the views, positions or policies of Sermo.
