Medical malpractice is the area of law that governs civil liability claims for harms caused by medical professionals while discharging their professional responsibilities. Most medical malpractice suits are based in negligence, in which a doctor or another health care professional is alleged to have failed to exercise ordinary care in the course of medical treatment, resulting in injury to a patient.

Medical malpractice claims involve complex questions of fact, cost-benefit analyses and a range of parties and institutions other than just the doctor and the patient. So, medical malpractice is a specialized area of law, with distinct rules and procedures that distinguish it from ordinary negligence law. These claims are typically based on state law and so standards, regulations and procedures differ by state.

As with all negligence lawsuits, medical malpractice claims grounded in negligence require the four negligence elements to be proven: duty, breach, causation, and damages.

Analysis of the duty elements asks the question as to who has legal recourse against a defendant for his negligent behavior. Put another way, towards which people does the defendant have a duty to act using ordinary care? For the plaintiff to succeed, it must be shown that she was owed a duty of care by the defendant. Breach is the counterpart to the element of duty. Once the plaintiff has established that a duty of ordinary care was owed to the plaintiff, it must further show that the defendant breached that standard of care by failing to uphold that duty. The final two elements, causation and damages, require proof that the defendant’s breach of duty caused the injury in question, and that the injury constitutes or led to legally recognized damages.

The Duties of Medical Professionals

Liability for medical malpractice claims stems from a doctor breaching his or her duty of care. However, doctors do not automatically have a duty to every person with whom they come into contact simply by virtue of being a doctor. Professional malpractice applies only when the professional assumes responsibility to provide professional services. In the medical context, this takes the form of a special relationship which arises out of the medical care provider’s responsibility to act on behalf of and in the best interests of a patient.[1]

Therefore, to bring a claim of medical malpractice, it must first be established that the plaintiff was owed a duty as a patient of the doctor or other medical professional. Normally, the doctor-patient relationship is formed when the patient seeks medical treatment and the doctor agrees to provide the treatment. Doctors are under no legal obligation to undertake the medical care of a patient. Thus, doctors only have a duty of care to those they agree to treat.[2] However, once a doctor does agree to provide medical services to a patient, the doctor has an ongoing duty of care to the patient until the relationship is properly terminated.

Note that merely consulting with a doctor about a medical condition may not suffice to establish a doctor-patient relationship. When a medical school professor at a medical conference recommended that a patient undergo surgery, the court held that the professor could not be held liable for harms suffered by the patient. Since there was no explicit agreement to treat, the opinion was offered in an academic environment, and the professor had no means to direct the treatment of the patient, no doctor-patient relationship had been established.[3]

At the same time, a doctor-patient relationship may be established even without explicit agreement, if a doctor takes affirmative steps to diagnose, treat, or to prescribe medical remedies to a patient.[4]

In one case, the court found that a doctor-patient relationship had been established when the mother of an adult pregnant woman reached out to a doctor, who discussed with her the symptoms and medical condition of her daughter. The critical piece of evidence cited by the judge was the fact that the doctor discussed the specifics of the pregnant woman’s condition and suggested follow-up protocols. So, although the doctor never explicitly agreed to take the pregnant woman on as a patient, or never even spoke directly with her, the doctor assumed all the duties associated with the doctor-patient relationship.[5]  

Additionally, the ‘no obligation to treat’ rule has exceptions. Under federal law, hospitals that accept Medicare funding (which most hospitals do) are required to treat anyone suffering from an emergency medical condition. The hospital is obligated to stabilize the medical condition, or to appropriately transfer the individual to another hospital.[6]

In addition, federal civil rights legislation prohibits physicians and hospitals receiving federal funding, including Medicare and Medicaid, from discriminating against patients based on race, color, religion, or national origin.[7] Some states have expanded on this and prohibited health care providers from denying medical services based on gender, sexual orientation, marital status, disability, or medical condition.[8]

Limits of the Doctor-Patient Relationship

Normally, doctors have ongoing obligations to their patients as long as the underlying condition requires medical attention.[9] A doctor may terminate the relationship in the middle of a course of care, but must provide sufficient notice and a medical referral to a competent physician to ensure continuity of care. Only at that point does the doctor properly terminate the relationship and end his obligations to the patient.[10] Failure to provide notice or an appropriate referral can leave the doctor open to liability even after his treatment of the patient comes to an end.[11] An improper termination of the doctor-patient relationship is a form of medical malpractice known as abandonment.[12]

Even when the doctor-patient relationship is ongoing, there may be occasions in which the doctor is unavailable to treat patients due to conflicting obligations, personal and family commitments, or simply vacation from work.  The law recognizes that no doctor can be on-call at all times, and so unavailability is a legitimate reason for not providing treatment. However, when a doctor knows she will be unavailable to her patients, she has an obligation to inform her patients and to arrange for reasonable substitute care.[13]

Note that the unavailable doctor is not liable for malpractice for the misconduct of a covering physician if the on-call physician he designates as a substitute is competent and is an appropriate substitute.[14]

Duties to Third Parties

The doctor-patient relationship is established based on the agreement of two parties. However, once established, there are situations in which the doctor’s obligation to a patient also entails obligations to third parties. The most prominent example arises in the case of a pregnant patient. Since treatment of a pregnant woman necessarily impacts the health and well-being of the gestating child, the doctor’s duty to promote the welfare of the mother extends to the child.

Failure to meet the responsibilities of care for the unborn child can give rise to liability, even if the mother does not suffer harm. For this reason, a court held a doctor liable for a baby born with birth defects due to a failure to prescribe medication to protect the fetus in utero when he knew that the mother had been exposed to measles.[15]

The same principles extend to other cases in which the treatment of a patient has direct impact on the well-being of others, such as when the patient is suffering from a communicable disease. The failure to diagnose or to properly treat the patient can lead to liability for harms suffered by third parties, such as family members of the patient if they contract the disease because of the physician’s negligence.[16]

Similarly, health care providers may have a duty to warn the immediate family of a patient against foreseeable risks emanating from a patient’s illness. To take one example, a doctor was held liable for the death of the wife of his patient, when she died from Rocky Mountain Spotted fever, which was the same illness for which the doctor was treating her husband. Although the wife was not a patient, the court held that the doctor had a duty to warn her, as a close family member, of the risk that she had been exposed to the disease under the same circumstances as her husband, and to inform her of the need for immediate medical treatment with the manifestation of any symptoms.[17]

In some jurisdictions, the duty to warn third parties has been extended to psychiatrists in cases where the psychiatrist knows or should know that a patient poses a risk of substantial bodily harm to a specific person.[18]

Informed Consent Requirement

The doctor’s special duty of care to a patient stems from the professional and expert nature of medical care. However, while a patient entrusts his care to a medical professional due to superior knowledge and experience, he does not forfeit his basic right to determine what is done with his body. Therefore, treating a patient without consent is a form of unlawful touching and can give rise to a common law claim of battery.[19]

In contemporary jurisprudence, the focus is on whether the doctor provided sufficient material information about a proposed treatment for a patient to make an informed decision. If the doctor fails to sufficiently disclose pertinent information to the patient, this can be the basis of a medical malpractice claim.

To ensure consent, doctors generally require patients to sign consent forms, which detail the nature of the diagnosis, the risks of the proposed treatment, explanations of alternative treatments and the name of the physician who will perform the medical intervention. Although informed consent can usually be oral or in writing, getting consent in writing is safest and some jurisdictions require written consent for certain treatments.

Even with written consent, the forms alone do not always demonstrate that the doctor fully informed the patient so that he understood the procedure, was able to weigh the risks and benefits and consider alternative options. In a malpractice claim for lack of informed consent, the question is whether the doctor properly explained the treatment information. Signed forms may be evidence of proper consent but are not definitive in such cases.[20]

The contours of what is considered necessary for informed consent is set both by legislation and medical codes of ethics. The American Medical Association Code of Ethics details three primary aspects of a doctor’s duty to obtain informed consent. First, the code calls on physicians to assess a patient’s ability to understand relevant medical information and the implications of treatment alternatives and to make independent, voluntary decisions. Second, physicians should present relevant information accurately and sensitively, in keeping with the patient’s preferences for receiving medical information. The physician should disclose information about the diagnosis, the nature and purpose of recommended treatments, as well as the risks and expected benefits of all options. Finally, the conversation with the patient and the patient’s ultimate decision should be documented in the medical record.[21]

The generally accepted legal standard for determining whether a doctor has disclosed sufficient information to meet the requirement of informed consent is the professional standard test. This means that doctors have the duty to disclose the aspects of the treatment which a reasonable medical practitioner would disclose under similar circumstances.[22] To show that the doctor did not disclose all the information needed to secure sufficient informed consent, a plaintiff must show that the doctor deviated from customary professional practice. This usually requires expert testimony as to the state of the medical profession in like situations.[23]

Some jurisdictions instead apply the reasonable patient standard. Under this approach, courts will look to whether the doctor disclosed sufficient information such that a ‘reasonable patient’ would have the information needed to make an informed decision.[24] The reason for this alternative approach, which shifts the focus from the standards of physicians to the needs of patients, stems from a concern over the requirement for expert testimony. It was adopted in response to the perception that physicians sought to protect their colleagues from liability by refusing to testify in malpractice cases.

In a seminal case, a young man undergoing spinal surgery was informed of the risk that he might feel weakness following the surgery but was not told of the chance the surgery might lead to paralysis, which, unfortunately, is what occurred. The doctor explained that he did not warn of the risk of paralysis because he felt that it might deter the patient from undergoing the surgery and so disclosing the risk in those circumstances was not good medical practice. The court rejected defendant’s motion to dismiss the claim due to the lack of expert witnesses. The court held that applying the professional standards test and requiring expert testimony prevented recovery in cases in which the professional custom is unclear and wrongly excluded reasonable judgements about what constitutes ordinary care owed to patients. Therefore, even without the testimony as to standard medical practice, a jury could reasonably decide that the doctor’s decision not to disclose constituted a breach of ordinary care, regardless of customary medical practice.[25]

When is Consent Not Required

In some cases, doctors may legally treat a patient without first obtaining consent. The most obvious and common case is that of a medical emergency where the patient may not be able to consent, due to being unconscious or in a similar position. Though consent from the patient or a family member should be sought where practical, a doctor may perform medical interventions if the life of the person is threatened and where failure to intervene will likely result in serious or permanent impairment.[26] In such situations, consent is said to be implied.

The law recognizes several other exceptions to the consent requirement. One is known as ‘therapeutic privilege’ and it applies in cases where the doctor believes that withholding pertinent information about a medical condition and treatment options is in the best interest of the patient because disclosing such information under the circumstances would be severely distressing to the patient and could harm his health and well-being. The harm to the patient must be so severe as to make the disclosure contra-indicated from a medial point of view. [27]

Finally, minors are generally considered incompetent to give consent for medical procedures. When treating a minor, the physician must obtain informed consent from a parent or legal guardian of the minor.[28] However, the law in some jurisdictions does recognize circumstances in which a minor is deemed capable of consenting to medical procedures. These typically involve treatment related to what are called ‘adult issues’ such as treatment for alcohol or drug addiction, sexually transmitted diseases or the prescription of birth control.[29] Similarly, a minor who has been lawfully emancipated may consent to medical treatment without parental consent.

In our next module, we will look at the standards of care to which doctors are normally held and how malpractice is normally established and proven in court.


[1] See Mead v Adler, 220 P.3d 118, 122 (Or 2009.).

[2] Hurley v. Eddingfield, 59 N.E. 1058, 1058 (Sup. Ct. 1901).

[3] Rainer v. Grossman, 31 Cal. App. 3d 539, 543-44 (Ct. App. 1973).

[4] See Mead v. Legacy Health System, 220 P.3d 118, 122 (Or. Ct. App. 2009).

[5] Adams v. Via Christi Reginal Med. Center, 19 P.3d 132, 139-40 (2001).

[6] 42 C.F.R. § 489.1-489.18.

[7] Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (July 2, 1964); 42 C.F.R. § 489.10(b)(1).

[8] See, e.g., Cal. Civ. Code §51.

[9] Ricks v. Budge, 64 P.2d 208, 211-12 (Utah 1937).

[10] Id. at 212; see also Byrd v. WCW, 868 S.W.2d 767 (Tex 1994) (discussing requirement of doctor-patient relationship).

[11] Longman v. Jasiek, 414 N.E.2d 520, 523 (Ill. App. Ct. 1980).

[12] George F. Indest, Patient AbandonmentHome Health Care Law Manual, The Health Law Firm, (1996),

[13] Id.

[14] Settoon v. St. Paul Fire & Marine Ins. Co., 331 So. 2d 73, 78 (La. Ct. App. 1976).

[15] Sylvia v. Gobeille, 220 A.2d 222, 101 R.I. 76, 78 (1966).

[16] Shepard v. Redford Hospital, 390 N.W.2d 239, 246 (Ct. App. 1986).

[17] Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993).

[18] Tarasoff v. Regents of University of California, 551 P.2d 334, 340 (Cal. 1976).

[19] Schloendorff v. Society of New York Hospital, 105 N.E. 92, 129-30 (N.Y. 1914).

[20] See Sard v. Hardy, 379 A.2d 1014, 1022 (Md. 1977)

[21] AMA Code of Medical Ethics, Opinion 2.1.1.

[22] Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960).

[23] Culbertson v. Mernitz, 602 N.E.2d 98, 104 (Ind. 1992).

[24] Cobbs v. Grant, 502 P.2d 1, 11-12 (1972).

[25] Canterbury v. Spence, 464 F.2d 772, 785 (D.C. Cir. 1972).

[26] Cal. Business and Professions Code § 2397.

[27] Canterbury v. Spence, 464 F.2d 772, 789 (D.C. Cir. 1972).

[28] Zoski v. Gaines, 260 N.W. 99, 102 (Mich. Sup. Ct. 1935).

[29] Cardwell v. Bechtol, 724 S.W.2d 739,745 (Tenn. 1987).