Chilling New Ways Patients Are Suing Doctors

Anthony Francis, MD, JD

Disclosures

March 29, 2012

In This Article

Claiming Civil Rights Violations

Many states have enacted civil rights laws that complement federal civil rights and disability laws. In an attempt to avoid traditional medical malpractice requirements of expert testimony and pretrial affidavits, some plaintiffs have filed civil rights cases, obviating the need for expert testimony.

In a case from 2012 in St. Louis, Amanda Crider, who is deaf, filed a lawsuit against a hospital after she alleged that she had continued pain after receiving an epidural during childbirth. She had requested "natural childbirth," but as the labor progressed it became apparent to the medical staff that an epidural was advisable.

She claimed that there was a failure to advise her in sign language of the necessity of the epidural. She also claimed that there was no mention of the risks, and she alleged that she had unremitting back pain after the epidural.

Crider failed to provide an affidavit of probable medical negligence at the time her case was filed, as required by Missouri law. Instead, she claimed her civil rights were violated. This tactic circumvented the need for expert testimony.

However, the trial court dismissed the case. The appellate court affirmed the dismissal, stating that the thrust of the action was medical malpractice, not civil rights. She had not met the requirements of establishing a case of medical negligence.

Despite this, claiming a civil rights violation instead of medical malpractice is a growing trend. Many recent cases against doctors fall under the umbrella of civil rights, especially as it pertains to any disability defined by the state or federal law.

The expansion of civil rights will allow plaintiffs to file a case alleging a civil rights violation in conjunction with, or in lieu of, a malpractice case. Even though the plaintiff may lose in the end, there is the aggravation, stress, and cost for the physician to defend the suit. These actions fall under "failure to accommodate" for the disability.

Conclusion

Of the 3 new ways that patients are attempting to sue doctors, medical monitoring and loss of chance are the greatest threats to physicians. While the chance of success of such suits may not be high, the aggravation, time lost, and potential damage to a physician's reputation make these threats a legitimate cause for concern.

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