Standard of Care, Consent And Malpractice

A standard of care, or the minimum safe professional conduct under specific conditions as determined by professional peer organizations, must be maintained at all times. Failure to perform to the standard of care is called negligence. If negligence results in harm to a patient, it is considered an unintentional tort and the patient can file a lawsuit against the physician or physicianfs agent, such as the medical assistant. An act of negligence can involve:
1) nonfeasance, or failure to do what a prudent person would do that results in harm to a patient.for example, failure to monitor a patient's warfarin (Coumadin) levels, which results in the patient being hospitalized for internal bleeding (also called omission)

2) malfeasance, or performance of an improper act that results in harm to a patient.for example, prescribing a medication to a patient with a known allergy, which results in the patient's death (also called commission)

3) res ipsa loquitor, a Latin phrase that means the thing speaks for itself, indicating an unintentional tort that is an obvious mistake in which negligence is clearly evident.for example, a patient with a tumor on the right leg is brought to the operating room where surgeons amputate the left leg. The negligence speaks for itself.


In addition to performing procedures in accordance with the standard of care, the medical assistant or physician must also obtain the patient's consent to perform the procedure. There are the two types of consent that may be obtained when providing care to a patient: implied and informed.

Implied Consent

Implied consent occurs when a patient consents to treatment through her actions, such as rolling up her sleeve to have her blood pressure checked. A medical assistant must never force a patient to have a procedure performed. If a patient declines a procedure, such as drawing blood or a blood pressure check, the medical assistant must note the refusal in the patient's chart. Facility policy may also require her to report the refusal of care to the physician.

Informed Consent

When a patient is scheduled to undergo invasive treatment, such as surgery, the physician must obtain informed consent, which involves a written form that is signed by the patient. The physician must ensure that the patient understands:
1) the procedure
2) why the procedure is being performed
3) who will perform the procedure
4) expected results of the procedure
5) risks of performing the procedure and of doing nothing
6) available alternative treatments and how the risks and benefits compare to those of the recommended procedure.
The medical assistant may ask the patient if he has any further questions for the physician. If she suspects that the patient does not understand the procedure, she should inform the physician immediately.

Barriers to Informed Consent

An interpreter may be required to obtain informed consent from a patient who is hearing impaired or speaks a different language than her physician. Sometimes, the physician may not be able to obtain
informed consent. In an emergency situation, a patient may be unconscious or in too much pain to comprehend the physician's explanation of care. In such a situation, where the life, health, and safety of a patient depend on the physician's quick response, the Good Samaritan law protects the physician from litigation. The Good Samaritan law extends to anyone who offers emergency help within the scope of their training and abilities, including anyone who administers CPR or first aid while waiting for emergency services personnel to arrive at the scene of an accident. If a patient regains consciousness during the course of administering first aid, the prudent rescuer should ask, May I continue? For example, lifeguards are trained not only to rescue swimmers in trouble but also to administer CPR and first aid. They are, therefore, covered under Good Samaritan laws. (Note that Good Samaritan laws vary by state but always cover aid given in good faith by a person trained to do so.)


Malpractice, the medical form of negligence, is proven by four criteria, commonly known as the four Ds. If the prosecution can prove that all of these criteria apply in a certain case, the physician will be found guilty of malpractice and a monetary settlement will be awarded:
1) Duty.The prosecution must prove that a patient-physician relationship existed. A medical chart can be used to show proof of a physician's duty to care for a patient.
2) Dereliction of duty.The prosecution must prove that the physician failed to meet the standard of care. In court, the prosecution can produce an equally trained physician to testify as an expert witness. Commonly, an expert witness in a malpractice case practices the same specialty as the defendant. The expert witness can testify that she would act differently than the accused physician (defendant) and that the result to the patient would be better, resulting in no damage or less damage to the patient.
3) Direct cause.The prosecution must prove that the damage suffered by the patient is a direct result of the actions of the physician.
4) Damage.The prosecution must prove that omission or commission by the physician caused the patient injury or harm.