Elements of a Tort

¶ … tort case, I will refer to Matsuyama v Birnbaum, which is a tort case involving wrongful death, with healthcare defendants. This is an interesting case because malpractice suits of various types are one of the causes cited by casual observers as being contributory factors in the high cost of health care in the United States. This case relates to standard of care, wherein the medical practitioner was accused of not delivering an acceptable standard of care, and that this failure was the cause of the deceased's passing.

At issue in this case was the use of medical experts to determine whether the physician in the case met the acceptable standard of care. Such standards are used as benchmarks in tort cases involving malpractice, so determining what the acceptable standard of care is a critical issue in any such case. The methodology by which that standard is established was one of the key issues in this case.

So the standard of care doctrine is the critical one by which this case was judged, as is common in tort law. One must provide a reasonable standard of care based, which is medicine is based on evidence and past practice. Expert testimony is often used to establish the baseline for what an established standard of care is in a given situation.

Recent rulings have shifted somewhat the standard, in that the standard of care now holds that a doctor's negligence cannot reduce someone's chance for recovery, even when the chance initially was relatively low. Traditionally, if a patient had less than 50% chance of recovery, there would not likely be an award, but recent rulings have shifted this, so that any patient whose chance at recovery was lost would be able to sue and recover damages.

This is known as the loss of chance doctrine, and is now available to be applied to malpractice suits under tort law (Jayasankar & Curi, 2010). The result of this case does not suggest a need for tort reform, though it does have some explanatory power for why the cost of health care is what it is.

Tort reform would suggest that there is something about this case that does not make sense when the principles are extrapolated over a large sample size -- no one case can be used as meaningful evidence of the need for systemic reform. The doctrine of loss of chance is quite meaningful where it complements the doctrine of standard of care.

Medical practitioners are bound to a certain standard of care, and that includes ensuring the patients are tested for as many possibilities as could reasonable occur, particularly when those possibilities are severe in nature. There is question, however, as to whether tort reform could enforce a different method of defining an acceptable standard of care. In some fields, it might be relatively easy to do this without relying on expert testimony for each case. In medicine, however, it is unclear whether tort reform would help. Each patient is different.

They present differently, and these uniquenesses make it difficult to write standards of care guidelines that are specific to each situation. There is risk in the current system of determining a standard of care in hindsight, but treating patients is not the same as building cars, or other such task that is routine in nature.

Determining an acceptable standard of care in non-routine situations is less than ideal, but the nature of unique situations is that there is no meaningful way to predetermine a standard of care, so the doctrine for all its faults remains the best approach to solving the problem. At most, loose guidelines could be published for the more common situations that a doctor might face, but that would not fully address the issue at hand with the doctrine of standard of care in non-routine tasks.

There are a few different elements of a tort case. The standard of care is one of the major ones -- a professional is obligated to provide a specific standard of care. In litigation, it has to be established that the professional did not provide the adequate standard of care. To not provide that standard of care is considered a breach of duty.

In Matsuyama, the physician simply prescribed antacids to a patient with gastric symptoms, rather than performing the appropriate tests, which in this case probably should have included a colonoscopy or other method of checking the stomach for things like cancers or even hiatus hernia. The physician had a duty of care to the patient to investigate the potential causes of the symptoms. There were many such potential causes, and some of those were serious in nature. The other elements of the tort case are the causation and the damages.

It was established in this case that the physician breached his duty of care by not ordering subsequent tests for four years, or what was ultimately 11 years since the onset of symptoms. The cancer could have been detected earlier, had the physician ordered the appropriate tests. By the facts of the case, the physician simply told the patient to take antacids, and did not even prescribe omeprazole or something of that nature -- the physician essentially did not make an attempt to diagnose the problem so that.