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While most healthcare practitioners are familiar with medical malpractice and have grown to fear it, those in the field of vascular technology might not be aware of the implications specific to the role of the vascular technologist. It is commonly assumed that those who should fear medical malpractice are the interpreting physicians, after all it is his or her name that is signed on the report. Or, the hospitals due to their ultimate responsibility for the patient care provided. Currently, there are thousands of pending medical malpractice cases in the United States. The average medical malpractice case takes roughly five years and approximately $50,000 to close. By ensuring that each exam is performed in accordance with The ICAVL Standards, vascular technologists can feel confident that they are taking steps to reduce their liabilities.

The Law

Medical malpractice can be a catchall term as it refers to many different types of patient care situations. The most common cause of legitimate medical malpractice is negligence. In this case, the medical professional neglected to properly treat the patient. The next type of malpractice relates to medication errors. Thirdly, lack of informed consent occurs when the medical professional fails to inform the patient of the risk of a procedure or medication that they are about to receive. A less commonly known form of malpractice is “breach of contract or warrant”, meaning the promised results for a medical procedure or medication were not received by the patient. In addition, a patient can sue a practitioner for unprofessional conduct. The obvious items in this category are patient abuse and the prescription of drugs in excessive amounts, without legitimate reason. There are some conditions of unprofessional conduct that are applicable to the field of noninvasive technology, such as inadequate record keeping, failure to meet continuing education requirements and the performance of duties outside of the scope of practice. Minor disagreements with patients and poor customer service do not fall under this heading.

Practicing medicine without a license is a cause for malpractice. Vascular technologists and sonographers find themselves cited for this scenario most commonly among all legal liabilities. Related to the offense of practicing medicine without a license, the “practice of medicine” is defined as the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts.

To succeed in a medical malpractice case, the patient (also known as the plaintiff), and often their spouse and children, must be able to prove three things. First, they must determine, often through the help of an attorney, that the medical professional in question was truly negligent. Next, the patient must prove that the medical professional’s negligence caused them to suffer damages. Lastly, the burden falls upon the patient to prove that the medical professional in question caused the damage in the first place. Of all of the cases that go to trial, only approximately 27 percent are won by the plaintiffs, a large indication that the majority of medical malpractice cases are of little merit.

Once a patient has approached an attorney regarding his or her claim of medical malpractice, many methods are utilized to help substantiate the case. Generally, the attorney will begin by obtaining a copy of all related medical records. The patient will most likely sign for the records to be released to the attorney, without hesitation; however if there is an issue, any and all records can be subpoenaed and, thereby, court ordered. The attorneys will then employ an expert witness who will review the medical records and be willing to testify, under oath, that the actions of the medical professional in question did in fact cause the patient harm. The expert witness is commonly a highly credentialed medical professional, with expertise in the applicable specialty. The expert witness may testify that the medical professional in question has “breached the standard of care” and the expert will be very compelling because they believe it. It is unlikely that the expert witness will be willing to tarnish their own career by testifying to something they do not personally believe in. The basis of any medical malpractice case is the question, “what would a reasonable and prudent healthcare professional have done under the same clinical circumstances?”. In most cases, the plaintiff’s attorney will not proceed with the case if their medical expert does not agree that there is merit to the claim.

The statute of limitations provides the patient with time to decide if he or she wants to seek the advice of an attorney, related to concerns about his or her medical care. Following, the attorney is allowed time to gather information and may in fact be granted multiple continuances, by the court, to afford the time needed to assemble all of the necessary documentation. It is important to note that such cases often evolve two or three years after the incident, at which time the healthcare professionals named in the suit are notified of the action against them.

At this point in the evolution of the case, the healthcare professional, the defendant, is brought into the process and called in to give a deposition. This is an out of court testimony, taken under oath and recorded verbatim by a court appointed recorder to be used should the case go to trial. The process is frequently video and audio taped for the record. The statements made during a deposition are then published and provided to all parties named in the suit.

Attorneys for all of the interested parties are often present, although this is not required in all jurisdictions. The attorney who has ordered the deposition begins questioning. Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. All of the attorneys in attendance have the right to question the witness. The purpose of the deposition is to give all parties in the case a fair preview of the evidence. Another benefit of deposition is to preserve a witness’ recollection while it is still fresh, since the trial may be months or years away. The deposition must be taken very seriously as it can be used to impeach (or contradict) the witness’ testimony in open court. Sometimes, after a number of witnesses have been deposed, the parties will have enough information to reasonably predict the outcome of a prospective trial. This knowledge sometimes leads to a decision to withdraw the claim or decide on an out of court settlement.

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