Justification and excuse are distinct concepts

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Orthopedic surgeons are familiar with the term “standard of care,” and as this column has discussed previously, this term can hold different meanings for medical doctors, lawyers, judges and lay jurors. Differing interpretations notwithstanding, our legal system relies on a determination of the standard of care, usually through expert testimony, to establish a de minimis standard of professional conduct to determine accountability. As a threshold matter, a patient alleging medical negligence must prove that a deviation from the standard of care occurred in order to prevail at trial.

The practice of medicine is complex and subject to the judgment and professional nuances of individual practitioners in order to customize medical care to address individual patient needs. What if a physician must deviate from the standard of care, deliberately or otherwise, during the course of medical treatment? After all, the practice of medicine is rarely a cookbook adherence to defined standards of care, even though some might want to believe otherwise.

In this article, we examine the inherent ambiguity in measuring medical negligence by using some seemingly precise standard of care, at least in some circumstances. We explore the role of specific legal defenses that can allow necessary deviations from the standard of care.

B. Sonny Bal

Lawrence H. Brenner

Justification and excuse

While medical negligence is a component of tort (civil) law, the concepts of “excuse” and “justification” are easier to understand in terms of criminal law, where they can grant an exemption to specific groups of people from potential liability. Thus, to justify, as in “justifiable homicide” means that while society disapproves of killing people, some “excuse” may be found in the characteristics of the defendant to explain the otherwise unacceptable conduct. For example, the defendant who shot someone may be serving as a police officer who was threatened with a gun by a criminal (justifiable conduct), or the defendant may be suffering from mental illness, as John Hinckley’s lawyers argued after he had shot President Reagan (excusable conduct).

In the legal sense, a justification describes the quality of the act itself. In contrast, an excuse attaches to the status, capacity or relative incapacity of the accused defendant. Together, in criminal law, justification and excuse can serve to exculpate a defendant, i.e., mitigate a criminal sentence or acquit the individual entirely. In civil law, these defenses can serve to extinguish liability to pay compensation to the victim, even though the victim may prove a deviation from the standard of conduct, and show damages that flowed from such deviation.

Justification and excuse can, in certain circumstances, modulate the otherwise static and seemingly inflexible doctrine of the standard of care.

Determining the difference

Justification and excuse are distinct concepts, even though claims of excuse and of justification have some features in common. First, claims of justification are universal in that they extend to anyone aware of the circumstances that justify the nominal violation of a professional rule. A child may die from a vaccine, but we will hold the pediatrician as justified in administering that vaccine to children. This feature of universality follows from the justification’s rendering the nominal violation right and proper. Excuses, in contrast, are personal and limited to the specific individual caught in the circumstances that apply. There is a required element of involuntariness in excused conduct.

Second, claims of justification relate to a balance of interests and the judgment that the justified conduct furthers the greater good or lesser evil. Excuses, in contrast, do not ostensibly call for a balancing of interests. Thus, committing perjury to avoid great bodily harm would probably be excused, but inflicting mayhem on several people to avoid minor personal injuries would probably not be excused. Anticoagulation after total hip arthroplasty is justified, even if using it leads to a fatal bleed in a patient. But using intravenous heparin on every knee arthroscopy patient would not be excusable, even if one were to argue such use based on a model of the relevant risks and benefits.

Third, claims of justification and of excuse derive from different types of norms in tort law. Justification rest on norms, directed to the societal good that create exceptions to the prohibitions of the negligence law. Excuses are different in that they derive from norms not directed at doctors, but rather to legal bodies (peer review, judges and juries), who assess the accountability of doctors who unjustifiably violate the standard of care. Excusing a particular violation does not alter the standard of care. Thus, if a doctor relies upon the expectation of an excuse in violating the standard of care, his reliance creates a good argument against excusing him for the violation.

Application to tort law

Cordas v Peerless Transportation Company is a classic legal case that illustrates how the concept of excuse can apply to tort law, which is the law that governs medical negligence. In this New York case from 1941, two men who had just robbed another man at gunpoint were being chased by their victim. One of the pursued men jumped into a cab, while the pursuer gave chase outside the cab. The cab driver, employed by Peerless Transportation Co. (the defendant), was being persuaded at gunpoint to escape the scene or suffer the loss of his brains.

In this heated scenario, the terrified cab driver drove for a bit, then slammed on the brakes, and jumped out of the cab that was still running. The moving cab, with the robber still inside, rolled onto the sidewalk and struck a mother (Cordas, the plaintiff) and her two children. The issue before the court was whether the cab driver’s abandonment of the taxi, when he faced the pistol of a fleeing felon, constituted a standard of care an ordinary person would execute.

In answering the question in the affirmative, the Cordas court held that reasonable and prudent action is based on the set of circumstances under which the actions took place. The court considered the taxi driver’s act of jumping out of the taxi unjustified. Society does not want to encourage this conduct as a policy matter. The court remarked that the net danger to human life was greater than the danger to the cab driver, if the driver had remained in the cab with the gun pointed at him. But, the court also acknowledged that negligence is the failure to exercise that care and caution that a reasonably prudent person would exercise under like conditions or circumstances.

The value of the Cordas ruling is in explaining that negligence is not an absolute or intrinsic determination. Rather, negligence is always relevant to some circumstances of time, place or person. Cordas raises the question of what can we fairly expect a person to do when he has a gun pointed at him. By excusing the taxi driver’s conduct, we are posing questions of fairness and justice based on the limitations of what we can reasonably expect of people, given the predicaments in which they find themselves. A related consequence of this interpretation is that the injured plaintiff cannot recover for injuries arising from conduct that is otherwise outside the reasonable standard of care.

Negligence law

In the practice of medicine, negligence relates to conformity to norms. As long we do what should be done, is done by our peers or is generally accepted by the medical community, we assume our compliance to the standard of care. Justification is one prism that modulates this otherwise straight-line interpretation. Thus, a medical decision is justified when the benefits outweigh the risks. When a doctor applies his or her judgment and weighs relative risks vs. benefits in favor of the patient’s well-being, the decision is medically justified, and the law supports and encourages such conduct.

Justification relates to the risk-creating conduct of a doctor, which captures most, day-to-day decision-making of doctors. Excuse relates specifically to the predicament of the doctor. Justification refers to actions, while excuse focuses more on the actors. Justification is utilitarian, based on a weighing of risks versus benefits.

A justified surgical act or decision does not assure a good outcome, but is deemed not negligent. Thus, it may be justified that a patient received a particular antibiotic to treat an infection, but we would not hold the doctor liable for a serious allergic side effect to the antibiotic. Societal good is promoted by a policy that encourages doctors to treat infections with antibiotics, even though it is recognized that a finite proportion of patients will suffer complications related to the administration of antibiotics. We would not want judicial actions to discourage doctors from prescribing antibiotics for similar infections in the future.

Using the justification framework, in medical malpractice cases alleging a failure to diagnose based on a more detailed history, careful physical examination or use of appropriate diagnostic testing, the conduct of the physician will usually be unjustified. The reason is that, at least at a simplified level, had the correct diagnosis been established, then the diagnostic work-up to get to that diagnosis would have been justified. In other words, had the doctor considered the poor outcome related to an incorrect diagnosis, the benefit to the patient resulting from a more complete diagnostic work-up would almost certainly outweigh the risk or loss to that patient.

Accordingly, should society expect doctors to consider every diagnosis in the differential – no matter how remote the probability of that diagnosis? The answer of course is no, and it is related only in part to resource utilization. More importantly, since justification negligence cannot be related to a simple utilitarian model, we must reason more abstractly in order to decide when to excuse specific medical conduct.

The concept of excuse, when applied in medical management, modulates negligence law somewhat differently. Here, the doctor’s medical management may not be justified, but the application of excuse can relieve a doctor of legal liability. Applying the principles of Cordas to medical negligence cases, there are times when, even though an orthopedic surgeon’s conduct may not be justified, it may be excused. Such excusable conduct is not to be encouraged in the practice of medicine, but nonetheless, it should not lead to liability either.

Illustrative cases and analysis

Case A: A 43-year-old complains of knee pain and after proper work-up undergoes a knee arthroscopy. Notes document some limitation of hip rotation, but pathology and pain are localized to the knee. The patient improves, but 3 years later with continued pain, the patient ends up with a hip replacement for arthritis and collapse related to avascular necrosis. The patient argues that the knee arthroscopy was not warranted, and that his hip disease should have been diagnosed earlier.

Case B: Imagine the same patient injured in a serious car accident with life-threatening injuries requiring emergent, complex resuscitation. Many days later, when the patient is finally stable, a displaced femoral neck fracture is diagnosed and a hip replacement is advised. Assume earlier diagnosis would have shown an undisplaced injury amenable to simple fixation and hip preservation.

Applying the principles

In Case A, assuming MRI showed a meniscal tear, was the surgeon justified in doing knee arthroscopy? Must the doctor always diagnose hip disease in this scenario, even if the exam is merely equivocal, and the knee findings are clear and convincing? Even if the doctor should have diagnosed the hip disease at an earlier stage, do the attendant circumstances excuse the physician from liability?

In Case B, knowing that femoral neck injuries can occur in severe trauma, is societal good promoted by a policy that justifies missing an undisplaced femoral neck fracture and allowing it to become displaced? If so, what is that justification? If not, should the conduct of the medical staff be excused? What are the circumstances that might argue for such excuse?

What do you think? Join your partners in the discussion of these questions at www.OrthoMind.com.

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.