Medical malpractice and prostate brachytherapy

Abstract

Medical malpractice litigation is one of the most contentious issues in health care today. Medical doctors blame the tort system and personal injury lawyers for bringing forward unwarranted suits that increase malpractice premiums and bring emotional distress to competent physicians. Tortreform has been at the forefront of organized medicine for several decades but, according to Mello (1) medical malpractice remains in crisis. Medical malpractice is intended to serve three social goals: 1) to deter unsafe practices by clinicians, 2) to compensate victims injured by negligence, and lastly, 3) to exact corrective justice. In this framework, the threat of a lawsuit should prompt physicians to practice with care to ensure the well-being of patients. In the interest of fairness, any compensation that may result from a lawsuit is the responsibility of the guilty party/parties and is used to bear the associated costs including medical bills, lost earnings, and pain and suffering. In most jurisdictions, to be awarded compensation in a medical malpractice case, the plaintiff must prove four elements: 1) the defendant owed a duty of care to the plaintiff, 2) the defendant breached this duty by failing to adhere to the standard of care expected, 3) this breach of duty caused an injury to the plaintiff, and 4) the injury resulted in damages to the plaintiff. The “standard of care” is typically defined as the quality of care that would be expected of a reasonable practitioner in similar circumstances. The standard of care has historically been determined by the testimony of expert witnesses, although practice guidelines have also been used. In many states there has been a discernible shift away from the use of custom as defined by expert witnesses and toward a more independent determination by the court whether there has been a departure from “reasonable conduct.” The purpose of this editorial is not to discuss whether the departure from expert witnesses is wise, to argue the necessity of tort-reform, or to recommend how any reform is to be structured. Instead, this editorial will expand on a single component of a negligence claim, the standard of care that is highlighted in the excellent article by Elliott et al. appearing in this issue of Brachytherapy. A short overview of prostate brachytherapy (PB) in the United States is in order. The utilization of PB in the United States has skyrocketed in the past decade. In the Patterns of Care survey the percentage of prostate cancer patients treated with PB rose from