Defenses to Malpractice: What Every Emergency Physician Should Know

Abstract

Background Emergency medicine is a high-risk specialty that carries a constant risk of malpractice litigation. Fear of malpractice litigation can lead to less-than-optimal patient care as well as impairments in physician quality of life. Although malpractice fear can be ubiquitous among emergency physicians, most receive little to no education on malpractice. Discussion Medical malpractice requires that 1) The physician had a duty, 2) The physician breached the duty, 3) There was harm to the patient, and 4) The harm was caused by the physician’s breach of duty. Even if all four medical malpractice conditions are met, there are still special legal defenses that have been and can be used in court to exonerate the physician. These defenses include assumption of the risk, Good Samaritan, contributory negligence, comparative fault, sudden emergency, respectable minority, two schools of thought, and clinical innovation. Conclusions These legal defenses are illustrated and explained using defining precedent cases as well as hypothetical examples that are directly applicable to emergency medical practice. Knowledge of these special legal defenses can help emergency physicians minimize their risk of litigation when caring for patients.