46.2.3 Causation

This element of medical negligence holds that the patient-plaintiff must establish that he or she was actually injured by the physician-defendant’s breach of duty and that there was a foreseeable and causal relationship between that departure from the standard of care and the harm that came to the patient as a result [4, 13]. This is the idea behind the proximate cause of medical malpractice liability, which requires that the breach of duty must have directly caused the patient’s injury and also that the injury could have been foreseen and prevented had the physician upheld the standard of care [7].

46.2.4 Damages

Even if the above three elements have been satisfied, a physician cannot be held liable for medical malpractice unless the patient-plaintiff can prove that the physician’s action caused harm. Consider the following example:

One week after excision of a basal cell carcinoma of the back, your patient presents to you with erythema, tenderness, and yellow discharge from the operative site. You obtain a wound culture and empirically prescribe dicloxicillin for a wound infection, overlooking the patient’s documented allergy to penicillin. You notice your mistake the next day and call the patient immediately. She confirms the information, but states that the reported allergic reaction happened only once, when she was an infant. She has already started taking the antibiotic and reports no current problems or allergic reactions. You immediately switch the medication to doxycycline while awaiting the wound culture and sensitivity. The patient experiences no adverse events during follow up care and the infection clears.

In this example, the physician has established a duty, there was a breach of duty, and potential causation, but the patient has suffered no harm/damages from the oversight. Thus, it is unlikely that the physician can be held liable for medical malpractice.

However, it is not necessary that the damage be physical, such as a scar or severe allergic reaction. Rather, the damage can be psychological or emotional, such as anxiety or depression. Many patients view surgery and post-operative complications with fear and misunderstanding, and it is up to the dermatologist to facilitate communication while addressing any patient anxiety. This approach not only advocates responsible patient care but also preempts potential legal damages for psychological or emotional reasons [1].

In some cases, a patient’s own negligence may contribute to injury. For example, in dermatologic surgery, it is highly important for patients to perform proper post-operative wound care in order to achieve optical cosmetic and functional results [14]. A lack of appropriate action by the patient may constitute negligence on the patient’s part, such as failing to show up to a post-operative wound check or failing to follow postoperative instructions. By failing to follow instructions or notify their physician of a problem, a patient may be held accountable for his or her own non-compliance. In a case of patient-plaintiff negligence, a court judgment of medical negligence against a physician-defen- dant may be reduced or nullified. In most jurisdictions, juries may weigh in the amount of negligence a patient has contributed to his or her own damage in order to offset malpractice liability [1].

Thus, it is important to educate patients on proper wound care techniques to improve outcome and patient satisfaction [14]. Dermatologists should make themselves or a knowledgeable staff member readily accessible to patients for any preor post-operative questions or concerns and should also monitor patients’ progress throughout both medical and surgical treatment. This not only promotes good patient care but also ensures patients’ responsibility for their own actions, minimizing legal liability.

Summary: Consent/Refusal for Treatment

•Consent can be implied, verbal, or written.

•Informed consent is an involved process where physicians and patients work together towards a medical decision.

46.3Consent/Refusal for Treatment

Obtaining consent from a patient is usually more than just obtaining a signature on a legal document. It is a process by which patients take part in their own medical decision making. Failure by the physician to obtain informed consent could lead to legal allegations of an intentional tort, breach of contract, or negligence [15].

Assault is an intentional tort characterized as an act intended to cause harmful or offensive apprehension of contact with a battery being the actual occurrence of that harmful or offensive touching/contact [4]. Performing a