The causes of action in medical malpractice cases can vary across different states. The laws vary in terms of time limits to bring suit, qualifications of “expert” witnesses, cognizable theories of liability, and proper party defendants/proper party plaintiffs. Despite the difference, all states have the mandate of the doctor’s duty to patients.

Before the duty of care by a physician to a patient can be adjudged, it should first be established that there is a physician-patient relationship between them. In U. S. jurisprudence, a person has no affirmative duty to assist injured individuals in the absence of a special relationship with them (such as doctor-patient, attorney-client, guardian-ward, etc.). To give an example, a doctor who is having his own moment in a restaurant and getting his orders does not have the duty to actually extend help to a prospective patient who is also dining in the restaurant.  If the doctor merely continues with his meal and does nothing to help, the ailing person would not have an action for malpractice against him, not-withstanding their harm. The voluntary assistance of a doctor to a specific patient would not make him liable of anything because the aid he had given was based on his volunteerism and kindness.

The degree of competence and skill required of the doctor can only be established upon the conclusion that the doctor played his role under the physician-patient relationship. The “circumstances” include the area of medicine in which the physician practices, the customary or accepted practices of other physicians in the area (the “locality rule”), the level of equipment and facilities available at the time and in that locality, and the exigent circumstances, if any, surrounding the treatment or medical service rendered. To establish what is required of a specific patient, the situation can be assessed by an expert witness. An expert witness is someone who is knowledgeable of the filed and is independent and free from bias.

Vicarious Liability

Even if the doctor is seen to be the person primarily responsible for the act, he is not the only one that can be held liable. A hospital that has retained the doctor on its staff may be vicariously liable for the doctor’s negligence under a theory of “respondeat superior” (“let the master answer”) that often holds an employer liable for the negligence of its employees. Most of the time, there is a staff privilege that is offered the doctor. This means that the physician can do his duties with minimal supervision from the hospital management. Importantly, many doctors belong to private medical practices, such as limited partnerships or limited liability companies, that also may be vicariously liable for the negligence of their member doctors.

Despite the possibility for the doctor to go away with liabilities through the theory of respondeat superior, he cannot go away with his responsibilities for the negligence of his staff is the staff merely performed what was ordered by the doctor.  Likewise, an attending physician is generally liable for any negligence on the part of interns and medical students under the physician’s guidance, assuming their duty of care.