Legal 101: Tort Law and Medical Malpractice for Physicians

In the first installment of a new series aimed at better equipping ob/gyns to deal with legal issues, a physician-attorney reviews what it takes for a plaintiff to prevail in a malpractice case.






Dr Levine is Adjunct Professor of Law, Stetson University College of Law, Gulfport, Florida, and Adjunct Professor of Law, Western Michigan University Cooley School of Law, Tampa, Florida.


Note: This article does not create an attorney-client relationship between reader and author. Always seek competent legal counsel in your jurisdiction for specific issues. Future articles will expand upon some of the issues addressed here, such as how to help your attorney, survive a medical expert deposition, and navigate federal healthcare regulation. Dr Levine welcomes your comments and feedback and can be reached at


Oh East is East, and West is West, and never the twain shall meet,

Till Earth and Sky stand presently at God’s great Judgment Seat;

But there is neither East nor West, Border, nor Breed, nor Birth,

When two strong men stand face to face, tho’ they come from the ends of the earth!


-Rudyard Kipling, The Ballad of East and West


Statistically, ob/gyns are among the medical specialists most likely to be sued.1 Writing for the American College of Emergency Physicians, Sanbar and Firestone discuss “medical malpractice stress syndrome” and suggest, “education of the sued physician about medical malpractice stress is the key to dealing with the fear of litigation.”2 And this education may help to limit some of the stress related to malpractice suits.

Physicians and attorneys: Can East meet West?

Where do malpractice suits come from? Are attorneys really out to get doctors? The answers may lie in nature versus nurture; or in this case, in background, education, and training. Attorneys and physicians are trained differently and interpret their environments differently. Why are these 2 perspectives of learned professionals so different? Are physicians and attorneys really so different that “never the twain shall meet”?3

Attorneys rely on constitutions, statutes, and rules and regulations. They are trained to carefully interpret each word’s meaning and then interpret these words in their client’s best interest. Physicians rely upon the rules of physiology and generally seek to collaborate with their patients and positively influence a patient’s behavior. Attorneys and physicians also speak different, highly specialized languages.

From an attorney’s perspective, tort law is one of the fundamental pillars of civil law that serves as a mechanism to compensate those suffering loss or harm at the hands of another.3 From a physician’s perspective, tort law may seem to be an unjust mechanism by which attorneys seek to profit by harming physicians.



Criminal law, civil law

Understanding the legal basis and requirements for prosecuting medical malpractice lawsuits may help reduce physicians’ stress. United States law is divided into criminal law and civil law, which may occasionally overlap. In criminal law, defendants are alleged to have violated a governmental entity’s law. That entity must prove beyond a reasonable doubt (a steep burden of proof) that those allegations are true. Proving each crime requires proving each and every element of that crime. Defendants found guilty may be subject to incarceration and fines.

Let’s say, for example, that you take off your watch before seeing patients and leave it on the desk in your office. When you find the watch missing, you call the police. When the police find your watch in an employee’s car, she is charged with criminal theft. Criminal theft requires the taking of another’s property without permission and with the intent to permanently deprive that other person of their property.3

The state must prove beyond a reasonable doubt that: 1. The employee actually took your watch; 2. You did not give that employee permission to take your watch; and 3. The employee intended to permanently deprive you of your watch. This example seems straightforward. But what if there were no witnesses? What if the employee’s car was not locked and anyone could access it? What if there are no fingerprints? What if there is no other physical evidence that the employee took the watch? Anyone could have taken the watch and placed it in the employee’s car. That you did not give permission may be easy to prove. But the mens rea (“guilty mind”) element requires that the state prove beyond a reasonable doubt that the employee intended never to return it.

Unlike criminal law, in civil law, plaintiffs can sue defendants for doing wrong to them. Verdicts in civil cases involve which party is guilty and which party owes compensation to the other. Unlike the steep burden of proof in criminal cases, civil law usually requires that the plaintiff demonstrate the defendant’s guilt by a preponderance of evidence (a greater than 50% chance of liability).

An underlying premise of the court system is stare decisis, or maintenance of the status quo. In cases involving liability, one of the goals of the legal system is to put the aggrieved party back in the position he or she was in before the injury occurred. Because that may not be possible, monetary damages are frequently paid. When it comes to actions related to professional negligence (ie medical malpractice), the Law of Tort is invoked.

Tort law defined

A tort is a civil wrong for which a remedy in the form of damages may be sought.4 Tort law is one of the fundamental pillars of civil law in the United States that arose from the common law as a mechanism to compensate those suffering loss or harm at the hands of another.4 Tort law allows plaintiffs to recover monetary damages from defendants for a harm that was proven by a preponderance of the evidence. Other types of tort law include torts for intentional acts (purposefully injuring someone) and those for strict liability (injuries arising from ultra-hazardous activities such as using explosives).

Each state defines and regulates tort law. When the federal government or an agent of it is involved, the Federal Tort Claims Act may be invoked and will rely on that state’s regulation of tort law.4 The statutory requirements to file causes of action for medical malpractice vary from state to state but all share the same basic common elements: duty; breach, actual and proximate causation; and damages. A plaintiff bears the burden of proving, by a preponderance of the evidence, the veracity of each and every element in order to prevail, while the defendant needs only either disprove a single element or prove one or more affirmative defenses. If the plaintiff does not prove each and every element the defendant should prevail (although one cannot absolutely predict the outcome of any legal challenge dependent on a jury or even a judge).



Definition of duty

The first element of a tort claim is duty, which is decided by the judge as a matter of law.3 The precise requirements to prove duty vary by state, but Florida law generally is in keeping with most states. A Florida physician’s duty is to “exercise the ordinary skills, means, and methods that are recognized as necessary and customarily followed in the particular type of case according to the standard of those qualified by training and experience to perform similar services.”5 The standard relates to the prevailing standard of care, which is “that level of care, skill, and treatment in light of all relevant surrounding circumstances that is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers.”6

Judges evaluate a physician’s duty by examining whether a physician’s evaluation and treatment, or lack thereof, created a broader foreseeable risk for the plaintiff. Medical malpractice suits are claims of negligence, which require that the liable party function beneath the standard of care. So if the standard of care is that level of care, skill, and treatment recognized as acceptable by a reasonably prudent healthcare provider, a judge will need testimony by a medical expert witness to establish the standard of care. And the physician’s duty is to meet or exceed that standard of care.

Standard of care

Because medical expert witnesses are required, and because it is likely that the plaintiff and the defendant will each have their own medical expert witness, establishing the standard of care is sometimes difficult. It is important for physicians to realize, understand, and accept what the standard of care is. It is a threshold. It is not great care, average care, or even below-average or bad care. The standard of care is the threshold level beneath which harm occurs.

Let’s say that Dr Jones practices ob/gyn at Community Hospital and is on call when Ms Rose, a tourist from out of town, arrives by ambulance to the emergency department (ED). She is evaluated there and sent back to her hotel, where she ultimately collapses and fractures her nose. Does Dr Jones have any duty to Ms Rose? The legal answer is, “it depends.” Ms Rose is not and never has been Dr Jones’ patient; there is no pre-existing relationship. Was Dr Jones on call to the ED? If so, he could be responsible for failing to come to the hospital to personally evaluate Ms Rose.

Or Dr Jones could be responsible if he was on call and spoke with the ED physician by phone. In that scenario, Ms Rose’s medical expert witness will likely state that within a reasonable degree of medical probability Dr Jones had a duty to Ms Rose because the standard of care requires that ob/gyns on call to the ED evaluate patients when they are consulted by the ED. Opposing this, Dr Jones’ medical expert will likely testify that it is within the standard of care for Dr Jones to accept the ED physician’s evaluation and that there was no reason for Dr Jones to have seen Ms Rose.


A judge will consider the 2 expert opinions and determine if the malpractice suit may proceed based on whether Dr Jones had any duty of care for Ms Rose. In the event that the judge determines that a duty exists, the plaintiff will next have to prove by a preponderance of the evidence (similar to “within a reasonable degree of medical probability”) the second element of a malpractice suit: breach of the standard of care. Proving breach also requires a medical expert witness. After that witness defines the standard of care to establish duty, he or she must specifically document how and when the defendant breached the standard of care.

Ms Rose’s medical expert will state that Dr Jones’ actions were beneath the standard of care that the expert established. And Dr Jones’ medical expert witness will likely opine that there was no breach of the standard of care because Dr Jones’ care exceeded the standard. Ultimately the jury or fact-finder will have to compare the medical expert witnesses, evaluate the evidence and testimony, and determine whether Dr Jones breached the standard of care.

Notably, in what as known as res ipsa cases or res ipsa loquitor cases, a statute can determine breach. Res ipsa loquitor, or “the thing that speaks for itself,” refers to a particularly troubling or egregious case in which, for example, a surgical sponge or instrument is improperly left in situ. In these cases, duty and breach are generally accepted.



Breach and causation

After a medical expert establishes the standard of care and/or the threshold for duty, he or she must also define breach and then connect the breach to the harm suffered by the plaintiff. This third element of a malpractice claim is causation. Proving a tort requires proving 2 legally distinct types of causation: actual causation and proximate causation. Actual causation is also referred to as “causation in fact,” in which the plaintiff would not have been harmed but for the defendant’s negligence. Actual causation technically requires that the breach of the standard of care result in the harm suffered by the plaintiff.

Because Dr Jones was on call but failed to personally evaluate Ms Rose, he breached the standard of care that requires that personal evaluation. Ultimately Ms Rose’s medical expert will seek to establish causation by testifying that, but for Dr Jones’ failure to personally evaluate Ms Rose, Ms Rose would not have broken her nose.

Proximate causation is determined by the jury or fact-finder. They evaluate the specific facts of the case and then determine whether the defendant’s conduct foreseeably created a broader zone of risk that ultimately resulted in the plaintiff’s harms and losses. Here, foreseeability means that the defendant should have or could have predicted the injury. Foreseeability requires the fact-finder to determine that the harm suffered by the plaintiff was within the range of harms that could be expected given the plaintiff’s actions.

Once duty, breach, and causation are established, the plaintiff must prove the fourth and final element in a medical malpractice suit: damages.


Damages are divided into 3 types: economic; non-economic; and punitive. Economic damages are monetary losses for things such as past and future medical expenses, past and future earnings, loss of property, cost of repair or replacement of property, the value of domestic services required because of the harms suffered by the plaintiff, and the plaintiff’s loss of employment or business opportunities. Non-economic damages include pain and suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and loss of the enjoyment of life. Punitive damages exist to deter intentional or reckless behavior or malicious conduct.

Affirmative defenses

The plaintiff must also disprove or refute any affirmative defenses raised by the defendant. Affirmative defenses may be contributory (the plaintiff is partially responsible for his or her own harm, such as by failing to follow orders or coming for follow-up care) or comparative negligence (the plaintiff’s judgment is reduced by the percentage of the plaintiff’s own negligence); consent (the plaintiff consented to the injury); and immunity (when the physician is employed by the state or was acting as a “good Samaritan”).



Reducing stress and distress

Physicians prevail in most medical malpractice lawsuits. Just knowing that plaintiffs bear a steep evidentiary burden and that physicians are likely to prevail-and being aware of what legal basis is required to pursue a medical malpractice claim-should reduce physicians’ stress and distress.


1. Anderson RE. Ob/gyn shortage is going to get worse (op/ed). Accessed July 2, 2015.

2. Sanbar SS, Firestone MH. Medical malpractice stress syndrome. Accessed July 9, 2015.

3. The American Law Institute, Restatement (Second) of Torts, 1965.

4. Garner BA, ed. Black’s Law Dictionary, 8th Ed. Thomson West; 2004.

5. Cornell University Law School. Legal Information Institute. 28 US Code Chapter 171 – Tort Claims Procedure. Accessed July 6, 2015.

6. Granicz v. Chirillo, 147 So. 3d 544 (Fla. Dist. Ct. App. 2014), reh’g denied (Apr. 11, 2014), review granted, No. SC14-898, 2014 WL 7251827 (Fla. Dec. 17, 2014)



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