Defenses to Malpractice

What Every Emergency Physician Should Know

Michael Jason Hudson, MD; Gregory P. Moore, MD, JD


J Emerg Med. 2011;41(6):598-606. 

In This Article

Abstract and Introduction


Background Emergency medicine is a high-risk specialty that carries a constant risk of malpractice litigation. Fear of malpractice litigation can lead to less-than-optimal patient care as well as impairments in physician quality of life. Although malpractice fear can be ubiquitous among emergency physicians, most receive little to no education on malpractice.
Discussion Medical malpractice requires that 1) The physician had a duty, 2) The physician breached the duty, 3) There was harm to the patient, and 4) The harm was caused by the physician's breach of duty. Even if all four medical malpractice conditions are met, there are still special legal defenses that have been and can be used in court to exonerate the physician. These defenses include assumption of the risk, Good Samaritan, contributory negligence, comparative fault, sudden emergency, respectable minority, two schools of thought, and clinical innovation.
Conclusions These legal defenses are illustrated and explained using defining precedent cases as well as hypothetical examples that are directly applicable to emergency medical practice. Knowledge of these special legal defenses can help emergency physicians minimize their risk of litigation when caring for patients. Published by Elsevier Inc.


Malpractice litigation is an ever-present danger among practicing emergency physicians. This threat leads to fear of litigation and may alter behavior, leading to defensive practice. A 2003 mail survey indicated that, in Pennsylvania, 93% of physicians who are in specialties that have a high risk of litigation (emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology) practiced defensive medicine.[1] A 2008 survey by the Massachusetts Medical Society has shown that defensive medicine adds billions to the cost of health care and is unsafe for patients.[2] Fear of litigation may not only affect daily practice but also quality of life outside of the Emergency Department (ED).

There are four elements that must all be present in order for a physician to be held liable for damages in a malpractice suit. These elements are that: 1) the physician had a duty, 2) the physician breached the duty, 3) there was harm to the patient, and 4) the harm was caused by the physician's breach of duty. If all four conditions are not met, the physician is not held liable. If all four conditions are met the attorney has made a prima facie case, in other words, has proven malpractice exists. Many do not realize that even if all four elements are met, there are still "special defenses" that can be legally used to exculpate the physician. A well-known example is that if a physician stops alongside a roadway to help an injured victim, but in the process of doing so commits malpractice, he or she can use the special defense of "Good Samaritan". In that situation, the physician is acting as a Good Samaritan. Depending on state-specific laws, he or she likely would not be held responsible in court.


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