MEDICINE & LAW REVIEW SERIES

The Key Elements of Medical Negligence—Duty

American tort law (a.k.a. negligence) is designed to be flexible and elastic to adapt to
changes in time and public policy. It provides a structure of elements and factors to be
Gregg W. Luther, JD applied to each case’s specific facts on a case-by-case basis. The purpose of this structure
is to achieve as much uniformity as possible in the application of tort law. One side effect is
Gregg W. Luther PLLC, Oklahoma City, that this structure makes predicting the outcome difficult because of so many variables. In

Downloaded from https://academic.oup.com/neurosurgery/article/88/6/1051/6214534 by guest on 25 May 2021

Oklahoma, USA
addition, there is no national tort law. Instead, each state has developed its own law in the
Correspondence:
area of torts, which has resulted in differing exceptions and requirements based on where
Gregg W. Luther, JD, the medical care was given. The purpose of this article is to explain the first element of a
Gregg W. Luther PLLC, negligence case—“duty to use care”—and its accompanying factors/variables.
9112 N Kelley Ave, Ste A,
Oklahoma City, OK 73131, USA.
The first element that must be established in a medical negligence case is a duty to use
Email: gregg@greggluther.com care. In short, this means the physician must use a certain level of care in providing medical
services. The physician typically owes her or his patient the duty to exercise care. However,
Received, July 6, 2020. there are special situations in which a physician may not owe a duty of care and thus cannot
Accepted, January 21, 2021.
Published Online, April 7, 2021. be held liable for medical negligence. This article is designed to provide an overview of the
most common situations and summarizes the processes to determine whether a duty is
C Congress of Neurological Surgeons owed.
2021. All rights reserved.
For permissions, please e-mail: KEY WORDS: Duty, Medical negligence, Risk management
journals.permissions@oup.com
Neurosurgery 88:1051–1055, 2021 DOI:10.1093/neuros/nyab077 www.neurosurgery-online.com

INTRODUCTION AND PURPOSE JURISDICTION OVER MEDICAL

NEGLIGENCE CASES
The legal aspects of medical negligence are
historically complex, and there are few resources Civil courts have jurisdiction over medical
available to neurosurgeons who seek to under- negligence cases. In some instances, issues
stand them. It is simple to state that the elements pertaining to licensing may arise or may be
of a medical negligence case are duty, breach of derived from medical negligence cases. Those
duty, causation, and damages. A plaintiff (the cases may be heard separately in Board of
person bringing a medical negligence case) must Licensure proceedings.
prove each of these elements to prevail. The
purpose of this note is to explain the element of
duty. WHAT IS “DUTY”?
The concept of “duty” is at the center of negli-
THE COURT SYSTEM gence. In negligence law, duty is defined as an
obligation to exercise reasonable care whenever
There are generally 3 types of courts: criminal, the actor’s conduct might result in a risk of
quasicriminal (eg, State Boards of Licensure or physical harm to another.1
Administrative courts), and civil. Criminal and In order to pursue a medical negligence action,
quasicriminal courts involve the government as the plaintiff must establish the element of “duty.”
a party and have the power to take a right or To establish the “duty” element, the plaintiff
privilege from a person. An unrestricted license must prove the doctor owed the plaintiff a duty
to practice is an example of a right or privilege to exercise ordinary care to avoid injury to the
subject to abridgement. Civil courts do not plaintiff.
involve the government as a party. The remedies It is important to note that the term “ordinary
available in civil courts are usually monetary or care” refers to a very specific legal concept. In the
equitable (ie, injunctive relief ). context of medical negligence cases, “ordinary

NEUROSURGERY VOLUME 88 | NUMBER 6 | JUNE 2021 | 1051

LUTHER

care” is commonly defined as the degree of care used by a This is true even when the neurosurgeon never intended to create
reasonably prudent/careful person in the same or similar circum- a physician-patient relationship by consenting to provide medical
stances to avoid injury to another person. services to the patient.

THE DETERMINATION OF WHETHER THE THE “REASONABLE PERSON” STANDARD

PHYSICIAN OWES THE PLAINTIFF/PATIENT A
“DUTY” A basic tenet of American tort law is that the actions of a
person are judged by the objective standard of a “reasonable
Whether the doctor owes the plaintiff a “duty to exercise person,” and not by the subjective mind set of the actor.4
ordinary care” is a question of law. Every negligence case involves Thus, the question surrounding the “implied” physician-patient
2 categories of fundamental questions: questions of law and

Downloaded from https://academic.oup.com/neurosurgery/article/88/6/1051/6214534 by guest on 25 May 2021

relationship is not “what did the doctor intend,” but rather, “what
questions of fact. Questions of law are decided by the judge. The would a reasonable person think the doctor’s actions meant?” For
determinations of “what is ordinary care under the circumstances” example, suppose an on-call neurosurgeon gets a phone call from
and “whether the neurosurgeon has exercised ordinary care in this the emergency department physician about a patient. The neuro-
case” are questions of fact. surgeon has never seen or treated this patient. The emergency
Questions of fact are decided by the jury. department physician asks whether the patient’s symptoms are
“Ordinary care” represents the result of the jury’s assessment, related to a radiology finding of a bulging disc. The neuro-
and therefore determination, of how careful doctors must be. At surgeon asks a few questions which are answered by the calling
the end of a trial, the judge instructs the jury on the law they are physician. The neurosurgeon tells the emergency department
required to use to decide the case. The members of the jury are physician that the symptoms are not related to the disc bulge.
instructed to decide if the doctor used the knowledge, skill, and Although the neurosurgeon never intended to create a physician-
care ordinarily possessed and used by members in good standing patient relationship, this is an example of a scenario in which
in the same profession as the defendant doctor.2 This determi- the jury, using the reasonable person standard, might decide that
nation is often labeled the “standard of care.” a physician-patient relationship had in fact been created based
on the actions of the neurosurgeon. Key to this fact pattern is
STEPS IN THE PROCESS that the neurosurgeon was “on-call” at this hospital’s emergency
department, which means the neurosurgeon had some class of
This discussion begins by examining the process of the deter- privileges at that hospital and is required by medical staff by-laws,
mination around whether the neurosurgeon owed the plaintiff a rules and regulations, or contract to take Emergency Room call.
duty. This would provide the basis for the law imposing a legal duty
In the traditional physician-patient relationship, the neuro- to an unknown patient. If that key fact were eliminated (eg, the
surgeon owes the patient the duty to exercise ordinary care neurosurgeon had no relationship with the hospital where the call
to avoid injury to the patient. Although a physician-patient originated about this unknown patient), the judge may decide
relationship usually requires the “general consent” of the physician that no legal duty exists as to the neurosurgeon and bar the case
to provide medical services to the patient and “general consent” from proceeding against the neurosurgeon.
of the patient to receive medical services from the physician (not
to be confused with the legal entity of informed consent for a
specific procedure or treatment), general consent can sometimes THE DETERMINATION OF WHETHER THE
be imposed by law from the actions of the physician, the actions of PHYSICIAN OWED THE
the patient, or both. The law refers to this as “implied consent.”3 PLAINTIFF/NONPATIENT A “DUTY”
This is a totally different meaning of consent than the one
intended in the term “voluntary informed consent” applied to The answer gets more difficult to find when the plaintiff is not
patients. the patient or not in typical medical/surgical treatment settings.
For instance, where the physician’s actions would lead an For instance, does the doctor owe a duty to the fetus of a pregnant
observer to conclude that the physician has consented to provide patient, spouse or relative of a patient, or future spouse of the
medical services to a patient, consent of the physician is “implied” patient? Conversely, does the doctor owe a duty to a person on
(the word “implied” is used in legal writing even though the whom he or she performs a medical exam on for work or insurance
proper English term for an observer making deductions based reasons? Also, does the doctor owe a duty to a stranger to whom
upon the actions of the physician is “inferred”). In such an he or she renders emergency aid in a public setting such as an
instance, the decision is no longer a question of law for the judge, airport? Does a doctor who answers questions from a colleague
but a question of fact for the jury instead, because the outcome about one of the colleague’s patients owe a duty to the patient in
requires a determination of what these facts show (ie, are the question? And perhaps most timely, does the doctor owe a duty to
physician’s actions most consistent with consent or no consent?). a stranger on a virtual medicine visit by telephone or other media?

1052 | VOLUME 88 | NUMBER 6 | JUNE 2021 www.neurosurgery-online.com

 DUTY AND MEDICAL NEGLIGENCE

The answer to each of these general questions may be elusive decisions of trial court judges to assure the boundaries of “judicial
without a specific set of facts to apply. What doctors hear most discretion,” among other considerations, have been respected.
often when they pose such questions to medical negligence This is an exacting standard and serves as a functioning historical
lawyers is “It depends.” In general, with no physician-patient precedent in most states. For example, consider the fact pattern at
relationship and no contractual requirement to treat the patient, a high school basketball game in which a lady asks a neurosurgeon
there is a strong argument that the neurosurgeon has no legal seated beside her about a medication that had been prescribed
duty, and thus, may not be found liable. When the law is applied to her parent, a friend of the neurosurgeon. The neurosurgeon
to a specific set of facts, there are several competing factors that briefly states that he uses the medication in his practice and has
contribute to the answer. They fall into 2 groups: “risks of harm to found it to be effective. The neurosurgeon does not mention the
the plaintiff ” and “burdens on the doctor.” The group of factors side effects, which in rare instances, can be fatal. The parent later
carrying the greatest weight will determine whether there is a duty suffers a known side effect of the medication and dies. Should

Downloaded from https://academic.oup.com/neurosurgery/article/88/6/1051/6214534 by guest on 25 May 2021

or not under the specific circumstance. This determination is a the lady attempt to sue the neurosurgeon for wrongful death of
question of law to be decided by the judge. the parent, the judge could use judicial discretion and find the
Laws vary from state to state, but there are 5 factors that make neurosurgeon had no legal duty to warn of the side effects because
up the “risks of harm to the plaintiff.” They are the following: placing such burdens on neurosurgeons far outweighed the risks
of harm to people (not patients of the neurosurgeon) taking this
1. all foreseeable harms; medication.
2. the frequency or likelihood of harm; These factors are used by the judge to determine whether the
3. the severity of the harm; law imposes a duty in the circumstances of the case. They are also,
4. the public interest in preventing future harm; and in essence, the same factors the jury will use in deciding ordinary
5. any moral blame attributable to the doctor.5 care (ie, the standard of care, or how careful a doctor must be
under these circumstances). It is helpful to explore each of these
Some states also include the availability and feasibility of alter-
factors.
native safer conduct as a factor.6
The factor of “foreseeability” (ie, the foreseeability of harm
The most common elements falling into the category of a
occurring to someone in the plaintiff ’s position) typically involves
“burden on the doctor” are as follows:
finding answers to 2 questions or subfactors. The first question or
1. the increased work/effort that will be placed on doctors if a subfactor is whether was the harm that occurred to the Plaintiff
duty is imposed; is something that could be or could have been envisioned to
2. the additional time and/or money doctors will need to spend result from the doctor’s conduct. The plaintiff ’s injury must be
if a duty is imposed; something that a reasonable person, under these circumstances,
3. the consequences on the public by imposing a duty; and could anticipate as a possible consequence of what the doctor
4. the social value or usefulness of the doctor’s conduct. did. In our earlier example in which the emergency department
physician called the on-call neurosurgeon about the unknown
Some states even consider the availability of malpractice patient, imagine that 2 d after being sent home, the patient has
insurance to save the doctor from personal financial exposure. a heart attack and dies while being taken back to the hospital
American negligence law emphasizes the importance of objec- by ambulance. The patient’s spouse believes that if the neuro-
tivity. Objectivity entails the absence of bias, prejudice, or surgeon would have admitted the patient for observation, the
emotion. The judge who must decide the “weight” to be given patient would have been in the hospital when the heart attack
each of the factors used to determine whether the doctor owed began, and timely intervention would have occurred to prevent
a duty in the circumstances of the case is held to a standard of the death. In this circumstance, a strong argument could be made
objectivity. that a heart attack would not be within the foreseeable injuries
It would be disingenuous to equate the satisfaction of this that a reasonable person could envision resulting from the neuro-
standard uncritically with the elimination of subjectivity. Subjec- surgeon’s actions. Thus, the judge should give little weight when
tivity is difficult to eliminate and even to suppress. Nevertheless, valuing this subfactor.
there are structural aspects of the civil justice system established The second question or subfactor of the foreseeable harm factor
to serve as controls. The judge is held to a standard of “judicial is whether the plaintiff had been in the zone of people who could
discretion.” Judicial discretion refers to how the judge applies the be foreseeably injured by the doctor’s conduct. Again, a reasonable
law to an undisputed set of “material” facts. Material facts are person must be able to anticipate that someone in plaintiff ’s
those that are outcome or issue determinative. Although not void position could be harmed by the conduct. If the plaintiff can
of subjective determinations, judicial discretion simply means establish a physician-patient relationship (even if implied by the
the judge’s decision must fall within the boundaries of reason.7 doctor’s actions), a reasonable person could foresee injury to that
Although the “boundaries of reason” are not categorically defined, plaintiff. Thus, the judge will give ample weight to this subfactor.
they are generally taken to have a common-sense meaning that can The “frequency or likelihood of harm factor” is typically easy to
be understood by others. Appellate courts scrutinize actions and find in medical negligence cases. Statistics from published studies,

NEUROSURGERY VOLUME 88 | NUMBER 6 | JUNE 2021 | 1053

LUTHER

government statistics, Medicare, and patient safety groups often SPECIAL LAWS
provide the information needed. Obviously, the weight to be
apportioned this factor increases or decreases with the frequency Some states also have laws which grant immunity to doctors
of potential harm from the conduct. Let us return to the fact in specific instances—like rendering aid to a stranger in an
pattern of the neurosurgeon seated beside a lady at a basketball emergency. Some states also have laws which create liability for
game who inquired about a new medication prescribed to her a doctor to the spouse of a patient. These laws give the spouse a
parent. Add a new fact that the medication is contraindicated for separate legal action against a doctor for harm to the marriage as
people with a specific trait, carries a high risk of death if taken a result of the harm to the patient.
by those people, and the neurosurgeon knows the lady’s parent The area of virtual medicine in the law is so new that no
has that trait. Here, the judge might use judicial discretion and precedent has been established. However, with regard to the
impose a legal duty on the neurosurgeon to warn the lady of the “duty” element of a medical negligence case in virtual medicine,

Downloaded from https://academic.oup.com/neurosurgery/article/88/6/1051/6214534 by guest on 25 May 2021

contraindication. the process outlined above will be used to make that determi-
For the “severity of harm factor,” more weight will be appor- nation, unless the state has adopted statutes which control the
tioned when the potential harms include death or serious injury. determination. As mentioned earlier, all laws vary from state to
The lesser the potential harm, the lesser the weight given state so this article is only a reference and a neurosurgeon with a
to this factor. The same is true for “the public’s interest in specific question should seek the advice of a lawyer in his or her
preventing future harm” factor if the conduct is repeated in state.
the future. This factor examines the benefit conveyed to the
public beginning with the determination of whether account-
CONCLUSION
ability for the conduct can prevent harm to someone else in
the future. If so, then the weight of this factor is apportioned A physician typically owes a duty of care when rendering
according to the deterrent effect of imposing consequences for this medical services to his or her patients. However, there are special
conduct. situations in which a physician does not owe a duty of care
The “moral blame factor” is something of a relic from and thus cannot be held liable for medical negligence. The
general negligence cases (not involving the medical care of most important factor in determining whether a physician owes
patients) but has been listed by courts in medical negligence the plaintiff a duty to use care is the foreseeability (or risk)
cases when recounting the factors in determining whether of harm to the plaintiff from the physician’s conduct. In some
the doctor owed the plaintiff a duty. Moral blame is “culpa- instances, the decision of whether the physician owes a duty
bility in terms of the defendant’s state of mind and inher- will be made by the judge. In limited instances, that decision
ently harmful nature of the defendant’s acts…”8 No reported may be left to the jury. Every state’s laws are different. In some
decision has ever apportioned any weight to the moral blame instances, the decision is clear and controlled by statutes. In the
factor in a medical negligence case. However, the factor still remaining instances, the judge and the jury are guided by estab-
exists. lished factors that they must apply to the facts of a case to reach the
The “burden on the defendant factors” is more self- decision.
explanatory. In general, the judge apportions weight to these
factors based on the added burden to the doctor should a Funding
duty be imposed in this circumstance. Thus, the increased This study did not receive any funding or financial support.
time and effort created by imposing a duty would be appor-
tioned a corresponding weight value. So would the increased Disclosures
cost. The authors have no personal, financial, or institutional interest in any of the
The “consequences on the public factor” look for the potential drugs, materials, or devices described in this article.
detriment to the public by imposing a duty. Examples might
include higher health care costs or longer wait times. The social
value or utility of the defendant’s conduct again seems to be more REFERENCES
relic from general negligence law in that no reported decision 1. Bublick EM. Subsection 7: liability for physical and emotional harm. A Concise
has ever found a doctor’s conduct to have no value or utility. Restatement of Torts. 3rd edn. St. Paul, MN: American Law Institute Publishers;
Indeed, one state Supreme Court said “a physician’s delivery of 2013:77.
2. Keeton WP. Subsection 7: Prosser and Keeton on the Law of Torts. 5th edn. St. Paul,
medical services is of the highest importance,” and thus appor- MN: West Publishing Co.; 1984:187.
tioned “considerable weight” to this factor in determining the 3. Mead v. Legacy Health Sys. 283 P3d 904 (Or. 2012).
case.6 4. Keeton WP. Subsection 7: Prosser and Keeton on the Law of Torts. 5th edn. St. Paul,
MN: West Publishing Co.; 1984:174.
After apportioning weight to all the involved factors, the judge
5. Tarasoff v. Regents of Univ. of Calif., 17 Cal.3d 425 (1976).
then places each corresponding factor on an imaginary scale to see 6. Burroughs v. Magee, 118 SW3d 323 (Tenn. 2003).
how the scale tips to determine whether the law imposes a duty 7. Baker v. Tenner, 112 SW2d 351 (Mo. App. 1938).
under the circumstances at hand or not. 8. Day v. Lupo Vine St. L.P. 231 Cal. Rptr 3d 193 (Cal. App. 2018).

1054 | VOLUME 88 | NUMBER 6 | JUNE 2021 www.neurosurgery-online.com

 DUTY AND MEDICAL NEGLIGENCE

COMMENT patient, calls from an Emergency Room physician asking only for advice
about a patient, and even personal and private conversations about

F ive factors determine medical negligence, or malpractice. The first

is a duty to care for the patient. Following this initiating factor in
sequence are breach of the standard of care (duty), injury, causation
somebody’s health problems place a physician squarely in the crosshairs,
and can lead to serious unexpected liability if any adverse event occurs,
which might be traced to decisions or actions made or omitted based on
(the breach caused the injury), and finally damages (the injury is serious trusting that physician’s professional knowledge and expertise.
enough to warrant compensation). In medical negligence cases, duty is A physician is never completely “off-duty”. The license to practice
usually the easiest component of liability to decide. medicine is a privilege that carries a perpetual responsibility that is not
But it is not necessarily the least worrisome. In fact, establishing an left behind at the hospital or office. This report is a reminder to always
unperceived duty is one of the most treacherous traps a physician may exercise caution whenever offering a professional opinion or advice, even
fall into without realizing the danger lurking in casual and seemingly casually and far away from the professional setting.
innocent words and encounters. As pointed out in this report, “Key

Downloaded from https://academic.oup.com/neurosurgery/article/88/6/1051/6214534 by guest on 25 May 2021

Elements of Medical Negligence – Duty”, spur-of-the-moment conver- James R. Bean
sations (or “curbside consults”) with another physician about a particular Lexington, Kentucky

NEUROSURGERY VOLUME 88 | NUMBER 6 | JUNE 2021 | 1055