Medical Malpractice II: Recklessness and Beyond

Sadly, there are times in medical care whether because of all the money involved or because of bad-intentioned people, that health care providers do very bad things. And when they do, they can cause great harm.

Recall medical negligence refers to unacceptable carelessness or inattention but not to any bad intent. There are layers of increased wrongdoing in medical care as in all human interaction. The next worse level is called recklessness.

Recklessness describes when one acts in a way not necessarily meaning to harm somebody but taking actions with disregard for others’ safety, health and welfare. That is, you don’t intend to hurt somebody, but take actions that you know are likely to cause someone to get injured.

Think of a person driving at a hundred and fifty miles an hour. They may not mean to kill somebody else, but they are aware and may very well do so.

There are certain actions that, health care providers, particularly doctors, and most critically surgeons, that are extremely likely to cause someone’s death or serious injury.

As an example, imagine a surgeon, after, say, heart surgery is aware of tests clearly showing that the patient’s heart is not working optimally, and that an issue needs to be promptly diagnosed an addressed. If instead the doctor elects to leave the operating room and go to a business meeting, despite people in the operating room advising that the situation is getting worse.

Now, the surgeon may not have wished you harm or intended to harm the patient, or even desired to harm you, but any reasonable health care provider would know that the likelihood of serious harm in taking this course of non-action was great. That’s an example of recklessness.

The next and even worse level of medical wrongdoing is intentional wrongdoing. This is where the health care provider meant to cause a patient harm.

There’s sometimes a fine line between recklessness and intentional wrongdoing. Using the example above, if the surgeon meant to leave, but they didn’t really want to hurt the person that might be only recklessness. In the event they meant to do something that was going to cause a certain problem, then it’s intentional wrongdoing.

An example of intentional wrongdoing that sadly does arise is when a surgeon performs surgery that the surgeon knew was not necessary, and the surgery resulted in serious harm to the patient. This would be viewed as the surgeon meant to commit the fraud. Or the surgeon induces the patient to undergo the surgery by making them believe that they had something wrong with them that wasn’t wrong, or they intentionally removed an organ that was healthy.

Now, say the patient died. The surgeon may not have intended to kill the patient, but they certainly intended to commit a battery. The injury may not have been intended but the wrongful act was, an obviously put the patient at risk for the injury.

In general under the law, if you intended to cause a person injury by your wrongdoing and even worse, injury occurred, you’ll be responsible for the even worse injury. It’s kind of like going into a bank and you really only meant to rob the bank. But if five people are shot during the robbery, generally the robber will be held responsible for the shooting of the five people too.