Legal Consideration

there are several legal theories by means of which plaintiffs may proceed against defendant healthcare professionals. for instance, contrast law has provided a basis for suits in which a healthcare professionals is accused of guaranteeing a result from treatment. when the result is not to the plaintiff's satisfaction, remedy may be sought in court. plaintiff suits based in contract law against health provider are rare. recent history has seen a disturbing and dramatic increase in the number of suits filed under criminal law theories by goverment prosecutors for both alleged fraudulent activity on the part of healthcare provider and for plaintiff morbidity or morality damage. prosecutors attacking healthcare provider criminally must be able to prove that a criminal mind (mens rea) exists and that society has been injured. however, the legal theory covering most healthcare professional lawsuit activity is that of the tort. a tort is a private civil wrong not dependent on a contract. the tort may or may not lead to further criminal prosecution. classically, a viable suit in tort requires perfection of four essential elements: duty, a breach of duty, proximate cause, and damage. a healthcare professional may successfully defend a suit in tort by proving that no duty existed, no breach of duty occured, the healthcare professional's conduct was not the cause of damage, or no damage exists. briefly, the healthcare professional owes a duty to a patient if the practitioner's conduct created a foreseeable risk to the patient. generally, a duty is created when a patient and practitioner personally interact for healthcare purposes. face-to-face interaction at the practitioner's place of practice most likely fulfills the requirement of a created duty, whereas interactions over the telephone, internet, and so on may not be as clear-cut about establishment of duty. a breach of duty occurs when the healthcare professionals fails to act as a reasonable healthcare provider, which in medical or dental malpractice cases is proved to the jury by comparing the defendant's conduct with the reasonable conduct of a similarly situated healthcare professional. testimony for this aspect of a suit for malpractice is developed by expert witnesses. exceptions to the rule requiring experts are cases in which no consent was given or obtained for an elective procedure or cases in which the defendant's conduct is obviously erroneous and speaks for itself (res ipsa loquitur), such as wrong-side surgery. in additions, some complications are defined as malpractice per se by statute, such as unintentionally leaving a foreign body in a patient after a procedure. the experts testifying as to the alleged breach of duty argue about standard of care. it is often mistakenly assumed that the standard of practitioner's community is the one to which he or she will be judged. today, the community standard is the national standard. if there are specialists reasonably accessible to the patient, the standard is the national standard for specialists, whether the practitioner is a specialist or not.

the standard of care also may be illustrated by the professional literature. healthcare professionals are expected to be aware of current issues in the literature, such as previously unreported complications to local anesthetics. often articles also proffer preventative suggestions and review treatment options.

simply because an accepted writing recommends conduct other than that which the healthcare provider used is not necessarily indicative of a breach of duty. for instance, specific drug use other than that which is recommended by the generic Physicians' Desk Reference is commonplace and legally acceptable as long as the healthcare provider can articulate a reasonable purpose for his or her conduct. part of this reasoning may likely include a benefit-risk analysis for various treatment options for a specific patient. proximate cause is the summation of actual cause and legal cause. actual cause exists if a chain of events factually flows from defendant's conduct to the plaintiff's injury. legal cause is present if actual cause exists and if the plaintiff's attorney can prove that the harm sustained was forseeable or not highly extraordinary in hindsight.

damage is the element of the cause of action usually moost easy to identify because it is most often manifested physically. simply because damage is present does not mean malpractice has been committed, but damage must be present to fulfill all the elements or the tort.

the nation has seen a dramatic rise not only in tort-based malpracice lawsuits over the past several years, but also in the pradictable sequelae of such legal action. trauma centers have closed, doctors are actively and pasively leaving lawsuit-friendly community or states (e.g. by limiting their practice or opting for early retirement), and patient consumers are now starting to directly feel the loss of healthcare professional availability and other cinsequences of a litigation system that has never been busier.

the administration of local anesthetics is not a procedure immune from the liability crisis. when it is estimated that more than 300 million local anesthetic administrations are performed annually in the United States, at times the administration of local anesthesia, although extremely safe, results in uninteded damage to the patient. if the elements of duty, breach of duty, and proximate cause accompany that damage, malpractice may have been commited. however, complications most often occur without any fault on the part of local anesthetic administrator. in these situations, most complications are still foreseeable, and because they are predictable, the reasonable practitioner should be aware of optimal immediate and long-term treatment for the complications of local anesthetic administration.