Medical malpractice draws from the wrongdoing of physicians with patients when a relationship in regard to care is established. This article elucidates the intersectionality of law and medicine, noting where limitations might lie between the two professions. The complex qualification of malpractice is defined by meeting four expectations: professional relationship between physician and patients, breach of care, injury claimed from such breach, and resulting damages. Even with particular definitions of malpractice, the handling of cases is done in the legal realm, taking considerations of legal perspective over medical as examined through several legal cases. The article discusses the relevant merit of malpractice data in the medical field, specifically, focusing on pediatrics. Presented with stark data of physician error rate and lack of research into methods that focus on improvement, the author concludes with considerations that should be made to how the current healthcare system should interact and utilize information from a tort legal system of malpractice.

Keywords: malpractice, pediatrics, law, error

I remember my favorite part of visiting the hospital was my choice of a new stuffed animal—the token of another successful ear surgery that would correct the supposed drainage in my ear canal. However, as I looked at the line of stuffed animals on my bed, I realized they represent more than memories, but also illustrate a startling reality in pediatric care.

From an early age, I struggled with listening in school and at home. Finally, after countless write-ups and complaints of pain in my ears, my parents took me to see an otolaryngologist. They discovered that I had an ear infection. Initially, I was given antibiotics, which became routine whenever I entered the doctor’s office. I had tubes after tubes attempting to drain the fluid in my ears. Ear tubes help prevent ear infections by allowing air into the middle ear and drain existing fluid in the canal (Barth, 2019). Despite vigilant treatment, the problem never regressed.

It took one slip of my hand with a q-tip in my ear to alter my life forever. At first, because of the extensive bleeding, I thought I had punctured my eardrum, yet I retained the same hearing as before—an unexplained outcome you wouldn’t expect after bursting an eardrum. My parents and I decided to see a specialist—a neurotologist. He discovered I had chronic middle ear infections that stemmed from middle ear developmental issues. I hadn’t punctured my eardrum, but rather a large growing cyst that was sure to burst on its own. The ear tubes that were believed to help my hearing were one of the biggest contributors to the worsening condition I had. I later learned that my dad had a medical history of hearing troubles with similar symptoms, suggesting a genetic predisposition to my condition. I underwent two surgical procedures to improve the physical properties of the congenital issues to correct the diagnosis. It was unfortunate but served as a focal point in my pursuit to provide better care in medicine. I wanted to investigate why my childhood diagnosis was terribly wrong and why it happened over and over. This led me to consider a seemingly practical resource in pediatric medicine—the use of malpractice data to improve health care.


In an article titled “An Introduction to Medical Malpractice in the United States” from the Association of Bone and Joint Surgeons, “medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient” (ABPLA, 2017), such as failure to diagnose or misdiagnosis, misreading or ignoring laboratory results, and unnecessary surgery, among other issues (Missouri Department of Health and Senior Services [MDHSS], 1997). Legal stipulations narrow the scope of how these qualifications can be used in a courtroom (MDHSS, 1997). A physician may fall under one or more claims of negligence, but the rendering for a legal case is unlikely because of the difference in the medical versus the legal approach to error. Thus, for a malpractice claim to be filed, a set of legal conditions must be met: (a) a professional duty owed to the patient, (b) breach of such duty, (c) injury caused by the breach, and (d) resulting damages (Kass & Rose, 2016).

When a plaintiff believes their medical care falls in with malpractice, under the suggestion of their lawyer, they can bring forward a claim of medical malpractice. In these cases, the doctor is said to owe a duty of reasonable professional care to the patient, which is established whenever a physician undertakes the care of a patient. After this establishment of relationship, they must invoke the “standard of care” needed to treat the patient (MDHSS, 1997). The definition of “standard of care” varies by the jurisdiction in which the case presides but can generally be referred to care which is reasonable, similar to what a professional in that situation would have provided to the patient. At this point in the medical malpractice case, an expert witness can testify to explain their approach to the “standard of care” they might have taken if they were in the situation presented by the plaintiff.

A pertinent, but difficult condition that a medical malpractice claim must meet is the establishment of causation. The plaintiff and their lawyer must show a direct relationship between the alleged misconduct and a subsequent injury. Causation for many malpractice claims is not easily created. However, this legal gauge of causation can undermine the medical approach to how the patient was treated. Because causation is established in the legal realm, it can bypass the initial medical approach, which convolutes the actual cause at hand.

The final legal condition that must be met is damages. These damages can be broken down into physical, mental, emotional, and social means. However, in each case, the plaintiff must demonstrate that damages have occurred. Therefore, documentation of procedures and records of cost attributed to malpractice, such as a time worksheet, are needed to supplement the claim.

The comprehensive tort system for malpractice may subject physicians to too much legal liability. Researchers in Canada surveyed physicians, finding that legal pressures often affect patient care adversely (Dickens, 1991). Specifically, the obstetrics field has seen an increase in litigation, and researchers emphasize that obstetrics and gynecology departments should “carefully explain the risk of death associated with any planned procedure, and to obtain genuinely informed patient consent” (Hamasaki & Hagihara, 2015).


The lengthy process of medical malpractice claims can seem daunting, but often prevails. Nevertheless, there are significant limitations of medical malpractice cases, especially if these cases are used to try to improve the health care system in general.

First and foremost, these cases are handled in the legal realm. The attention to detail and focus surrounding the claim is done through a legal lens. Legal methods invoke legal reasoning and nuanced interpretation of the law, whereas the field of medicine is based on the scientific method. The position of a lawyer interpreting medical evidence is inherently distinct from how a doctor interprets the same evidence.

Although valuable information might surface from a medical malpractice claim that could be useful in health care, the variance of “standard of care” defined in the legal system creates disparity. In courtrooms across the country, “standard of care” is applied to malpractice cases individually, which makes it exceedingly difficult to create a better universal approach to physician and patient interactions.

Another limitation is proximate causation, which is when a lawyer sufficiently asserts to how the cause of an injury led, whether related to the medical cause or not, to the occurrence of such injury (Bal, 2009). This type of causation permits a lawyer to narrow the field of causes of an injury or term of malpractice to one main cause. Although the other causes might be possible, the lawyer sees that the proximate cause led to the “foreseeable causes of the injury” (Kass & Rose, 2016). In proximate causation, legal remedies validate the plaintiff’s claim, but can limit vital medical integrity that could be used in health care. By narrowing the possibilities, other causes of injury could have occurred, which did not serve as the grounds for the claim. In 2018, the American Medical Association published an article titled “Misdiagnosis allegation not enough for negligence claim to go on.” Like the article’s title suggests, misdiagnosis on its own appears insufficient in a case of medical malpractice. The case Reyes v. Yakima Health District brought attention to the role of misdiagnosis in medical malpractice claims (Supreme Court of Washington, 2015). Judith Reyes’s husband had died unexpectedly from liver damage, which Reyes’s expert witness suggested to be undiagnosed liver disease. The presiding judge in the appeals court stated that “because allegations of misdiagnosis without deviation from the proper standard of care are not the basis of liability,” the case never made appeal. The expert witness had “failed to identify either the standard of care or that she was familiar with that standard.” The expert was another medical professional, but as diagnosis of disease can be subjective, their testimony lacked substance with regard to the plaintiff’s claim. Furthermore, the expert was unable to base their claim on factual terms. A previous case in 1999, Backlund v. Univ. of Wash., established a precedent—“a misdiagnosis may subject a physician to a negligence action ‘where such misdiagnosis breaches the standard of care’” (Supreme Court of Washington, 1999). This legal precedent demands more reliable evidence and testimony in the courtroom, yet its significance in health care can be seen much differently. If only cases that demonstrated misdiagnosis breached the standard of care go to trial, then the presumptive amount of diagnostic errors by physicians would be minimal. Therefore, medical malpractice claims do not capture the significance of misdiagnosis in health care. The scope of error in health care is much wider than depicted in these legal cases. This leaves an accountability gap in medicine that is often evaluated in a court of law, rather than through rigorous scientific research. If doctors have little reason to concern themselves about the way they are diagnosing patients, they will not change their behavior, as no tangible evidence proves otherwise.


Medical misdiagnosis is understood as the “failure of planned action to be completed as intended and the use of a wrong plan to achieve an aim” (Balogh, Miller, & Ball, 2015). There are a multitude of action plans a physician can utilize to treat a patient; however, if the professional is unable to identify what they are treating, medical misdiagnosis occurs. For instance, differential diagnosis has doctors look for candidate diseases that possibly align with symptoms and use a process of elimination to render further medical tests, aiming to reach the point of a single diagnosis (MedlinePlus, 2019). The Harvard Medical Practice Study found diagnostic errors account for 17% of preventable errors in hospitalized patients (Leape, Brennan, & Laird, 1997). Although this statistic is alarming, it does not exclusively describe the proportion of misdiagnoses in pediatric population.

Published in 2010, “Errors of Diagnosis in Pediatric Practice: A Multi-Site Survey,” several pediatric departments were surveyed, asking pediatricians how often they believed they made a diagnostic error in their practice. The article noted, “malpractice claims studies have provided useful data to understand diagnostic errors but may not represent the entire spectrum of diagnostics” (Singh et al., 2010).

Pediatric Lens

The “Errors of Diagnosis in Pediatric Practice: A Multi-Site Survey” found that on average, 3.1% of pediatricians face a malpractice claim, whereas it was higher for those in high-risk specialties, the average being 14.5% (Singh et al., 2010). These percentages were the lowest among all fields of medicine. In light of these findings, the data available for pediatricians to improve diagnostic techniques are minimal based on malpractice claims. In addition, the effectiveness of pediatric diagnosis has been measured sparsely. Research in pediatric practice noted, “little is known [about misdiagnosis] and much data comes from malpractice” (Singh et al., 2010). Furthermore, based on the fact that malpractice claims cannot rely on misdiagnosis alone, the information concerning misdiagnosis from these claims is small. The study found that 54% of respondents reported that they made a diagnostic error at least once or twice a month. In addition, 4% believed that misdiagnosis harmed a patient once or twice a month; 18%, once or twice per quarter; and 45%, once or twice per year (Singh et al., 2010). The discrepancy in percentages between 3.1% of pediatricians facing a claim and 45% believing they harmed a patient due to misdiagnosis is quite significant. These statistics lead to worse outcomes because the motivation to investigate diagnostic methods is mitigated by the low malpractice claim percentage. More research should be dedicated to more objectively determining the mean percentage of the entire population of physicians who make diagnostic error. This will not only serve as tangible statistical evidence, but it will also encourage the health care community to consider changes to their pace in diagnosing patients.


Although legal integrity in medical malpractice appears to substantiate a causality between that of an entity of health care, such a physician, and the damages of a patient, the specificity of the legal system that is intertwined in such malpractice claims does not provide insight into the overall understanding of misdiagnosis in pediatric medicine. Those in health care claim that errors of misdiagnosis can harm their patients; however, such harm is not congruent with the damages sought after for in medical malpractice claims. This does not constitute the impunity of medical malpractice claims as they are vital for accountability in health care. Nonetheless, in better understanding misdiagnosis in pediatrics, these medical malpractice claims play a small part in such efforts. Other methodology and research are necessary for grasping the spectrum of error in pediatric misdiagnosis, rather than relying on legal cases to pave the future of pediatric medicine. A nationwide reporting mechanism could be the beginning of a public health approach to resolving the lack of information on misdiagnosis in general, not only pediatrics. With this, the U.S. Government used Medicaid and CHIP claims data to support pediatric quality measurement but found current factors of claim reporting to hinder the ability to develop a large-scale quality measurement (Gidengil et al., 2014). Nevertheless, it has served as a valuable step in the appropriate direction.

I didn’t fight in court for the difficulties I faced in health care, but I live everyday with the repercussions of the decisions made by health care providers. I inherited otolaryngology pamphlets from a relative, and their contents intrigued me. Many of the tests in the pamphlet, I recognized. It was the peeling back of a band aid, covering the reality I discovered through my research. Although much of medicine has proved to be sustainable overtime, I argue that those in pediatrics, and all physicians, must be cognizant of their own errors and strive to invest time into research that can not only reduce errors in diagnostic care but also improve health care of children overall.


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