New Ways to Be Sued for Medical Liability

As providers of physician liability coverage, we wish the phrase, “There’s nothing new under the sun,” held true regarding medical liability. But, it does not. A recent article on MedScape.com reminds us of this. The article, entitled, “Chilling New Ways Patients Are Suing Doctors,” calls attention to three new ways in which patients are successfully claiming medical liability.

So what are the three new forms of medical liability that physicians and their liability companies have to worry about facing? Let’s take a look:

1. Loss of Chance. October 2011 saw Washington State recognize “loss of chance” as a new cause of action. They join about half of the states in the US in allowing this cause of action. But why is this kind of medical liability growing in popularity? These cases consider “what might have been” –if a treatment or diagnosis had been made earlier. Until recently, most states required a 50% or greater chance of survival or medical improvement. In recent years, several state Supreme Courts have allowed for a lower standard, opening the door for others to try.

2. Potential Future Problems. Like “loss of chance,” suing for potential future problems has been around for a while, but has gained medical liability popularity in the last few years. This kind of medical liability arose out of class-action lawsuits involving exposure to toxins and possible future problems that can arise from that. The damages sought are to “monitor” the patient in the future for potential health-related problems. Thus, there are no current damages identified at the time of the case –which is interesting –because, essentially, someone is suing for damages that might or might not occur.

3. Civil Rights Violations. This last new reason a physician might have to use his or her medical liability coverage is complicated. Essentially, these creative cases are an attempt to avoid the usual malpractice requirements of 1) expert testimony and 2) pretrial affidavits. The article describes this as the least likely to succeed of the three growing trends of medical liability discussed. But, as we all know, whether or not the case is won is just the tip of the iceberg when it comes to the stress, aggravation, time and money lost to simply endure a liability trial.