Medical malpractice is
professional negligence by act
or omission by a health care
provider in which care provided
deviates from accepted
standards of practice in the
medical community and causes
injury or death to the patient.
Standards and regulations for
medical malpractice vary by
country and jurisdiction within
countries. Medical professionals
are required to maintain
professional liability insurance to
offset the risk and costs of
lawsuits based on medical
malpractice.
Contents
[hide]
1 The medical malpractice claim
1.1 The party
1.2 Elements of the case
1.3 The trial
1.4 Expert testimony
1.5 Damages
2 Statute of limitations
3 Statistics
4 Criticism of medical
malpractice lawsuits and tort
reform
4.1 Special medical malpractice
courts
4.2 Limits on noneconomic
damages
4.3 Reduction in the statute of
limitations of action
5 References
[edit] The medical
malpractice claim
[edit] The party
The plaintiff is or was the
patient, or a legally designated
partie acting on behalf of the
patient, or - in the case of a
wrongful-death suit - the
executor or administrator of a
deceased patient's estate.
The defendant is the health
care provider. Although a
'health care provider' usually
refers to a physician, the term
includes any medical care
provider, including dentists,
nurses, and therapists. As
illustrated in Columbia Medical
Center of Las Colinas v Bush,
122 S.W. 3d 835 (Tex. 2003),
"following orders" may not
protect nurses and other non-
physicians from liability when
committing negligent acts.
Relying on vicarious liability or
direct corporate negligence,
claims may also be brought
against hospitals, clinics,
managed care organizations or
medical corporations for the
mistakes of their employees.
[edit] Elements of the case
A plaintiff must establish all four
elements of the tort of
negligence for a successful
medical malpractice
claim. [1]
A duty was owed - a legal duty
exists whenever a hospital or
health care provider
undertakes care or treatment
of a patient.
A duty was breached - the
provider failed to conform to
the relevant standard of care.
The standard of care is proved
by expert testimony or by
obvious errors (the doctrine of
res ipsa loquitur or the thing
speaks for itself).
The breach caused an injury -
The breach of duty was a
proximate cause of the injury.
Damages - Without damages
(losses which may be pecuniary
or emotional), there is no basis
for a claim, regardless of
whether the medical provider
was negligent.
[edit] The trial
Like all other tort cases, the
plaintiff or their attorney files a
lawsuit in a court with
appropriate jurisdiction.
Between the filing of suit and
the trial, the parties are
required to share information
through discovery. Such
information includes
interrogatories, requests for
documents and depositions. If
both parties agree, the case
may be settled pre-trial on
negotiated terms. If the parties
cannot agree, the case will
proceed to trial.
The plaintiff has the burden of
proof to prove all the elements
by a preponderance (51%) of
evidence. At trial, both parties
will usually present experts to
testify as to the standard of
care required, and other
technical issues. The fact-finder
(judge or jury) must then weigh
all the evidence and determine
which is the most credible.
The fact-finder will render a
verdict for the prevailing party.
If the plainitff prevails, the fact-
finder will assess damages
within the parameters of the
judge's instructions. The verdict
is then reduced to the judgment
of the court. The losing party
may move for a new trial. In a
few jurisdictions, a plaintiff who
is dissatisfied by a small
judgment may move for additur.
In most jurisdictions, a
defendant who is dissatisfied
with a large judgment may
move for remittitur. Either side
may take an appeal from the
judgment.
[edit] Expert testimony
Expert witnesses must be
qualified by the Court, based on
the prospective experts
qualifications and the standards
set from legal precedent. To be
qualified as an expert in a
medical malpractice case, a
person must have a sufficient
knowledge, education, training,
or experience regarding the
specific issue before the court
to qualify the expert to give a
reliable opinion on a relevant
issue. The qualifications of the
expert are not the deciding
factors as to whether the
individual will be qualified,
although they are certainly
important considerations.
Expert testimony is not qualified
"just because somebody with a
diploma says it is so" (United
States v. Ingham, 42 M.J. 218,
226 [A.C.M.R. 1995]). In addition
to appropriate qualifications of
the expert, the proposed
testimony must meet certain
criteria for reliability. In the
United States, two models for
evaluating the proposed
testimony are used:
The more common (and some
believe more reliable) approach
used by all federal courts and
most state courts is the
'gatekeeper' model, which is a
test formulated from the US
Supreme Court cases Daubert v.
Merrell Dow Pharmaceuticals
(509 U.S. 579 [1993]), General
Electric Co. v. Joiner (522 U.S.
136 [1997]), and Kumho Tire Co.
v. Carmichael
(526 U.S. 137 [1999]. Before the
trial, a Daubert hearing [2] will
take place before the judge
(without the jury). The trial
court judge must consider
evidence presented to
determine whether an expert's
"testimony rests on a reliable
foundation and is relevant to
the task at hand." (Daubert, 509
U.S. at 597). The Daubert
hearing considers 4 questions
about the testimony the
prospective expert proposes:
Whether a "theory or
technique... can be (and has
been) tested"
Whether it "has been subjected
to peer review and publication".
Whether, in respect to a
particular technique, there is a
high "known or potential rate
of error"
Whether there are "standards
controlling the technique's
operation".
Some state courts still use the
Frye test that relies on
scientific consensus to assess
the admissibility of novel
scientific evidence. Daubert
expressly rejected the earlier
federal rule's incorporation of
the Frye test. (Daubert, 509
U.S. at 593-594) Expert
testimony that would have
passed the Frye test is now
excluded under the more
stringent requirements of
Federal Rules of Evidence as
construed by Daubert.
In view of Daubert and Kuhmo,
the pre trial preparation of
expert witnesses is
critical. [3] A problem with
Daubert is that the presiding
judge may admit testimony
which derives from highly
contested data. The judge may
expand the limits contained in
the "school of thought"
precedent. Papers that are self-
published may be admiited as
the basis for expert testimony.
Non-peer reviewed journals may
also be admitted in similar
fashion. The only criterion is the
opinion of a single judge who, in
all
likelihood, has no relevant
scientific or medical training. [4]
[edit] Damages
The plaintiff's damages may
include compensatory and
punitive damages.
Compensatory damages are
both economic and non-
economic. Economic damages
include financial losses such as
lost wages (sometimes called
lost earning capacity), medical
expenses and life care
expenses. These damages may
be assessed for past and
future losses. Non-economic
damages are assessed for the
injury itself: physical and
psychological harm, such as loss
of vision, loss of a limb or
organ, the reduced enjoyment
of life due to a disability or loss
of a loved one, severe pain and
emotional distress. Punitive
damages are only awarded in
the event of wanton and
reckless conduct.
In one particular circumstance,
physicians, particularly
psychiatrists are held to a
different standard than other
defendants in a tort claim.
Suicide is legally viewed as an
act which terminates a chain of
causality. Although the
defendant may be held
negligent for another's suicide,
he /she is not responsible for
damages which occur after the
act. An exception is made for
physicians. Although there
exists no protocol or algorithm
for predicting suicidality with
any level of certainty, courts
throughout the United States
have found physicians to be
negligent. Furthermore,
damages are routinely assessed
based on losses which would
hypothetically accrue after the
act of suicide.Criticism of medical
malpractice lawsuits and
tort reform
Main article: Tort reform
Doctors' groups, patients, and
insurance companies have
criticized medical malpractice
litigation as expensive,
adversarial, unpredictable, and
inefficient. They claim that the
cost of medical malpractice
litigation in the United States
has steadily increased
at almost 12 percent annually
since 1975. [12] Jury Verdict
Research, a database of
plaintiff and defense verdicts,
says awards in medical liability
cases increased 43 percent in
1999, from $700,000 to $1,000
,000.
These critics assert that these
rate increases are causing
doctors to go out of
business or move to states with
more favorable tort systems.
[13] Not everyone agrees, though, that medical malpractice lawsuits are solely
causing these rate increases. A 2003 report from the General Accounting Office found multiple
reasons for these rate increases, only one of which was medical malpractice lawsuits.Despite noting multiple reasons for rate increases, the
report goes on to state that the "GAO found that losses on
medical malpractice claims-which make up the largest part of
insurers' costs-appear to be the primary driver of rate
increases in the long run."The major tort reform proposals have been: Special medical malpractice
courts
Limits on noneconomic damages Reduction in the statute of
limitations of action At the same time, studies of these claims have found [15][16]
[17][18] that there is no problem of increasing malpractice verdicts and insurance costs driving doctors out of
business. [opinion needs balancing
] This introduces the possibility
that claims of the need to limit
citizen access to the judicial
system in cases involving
insurance companies may be so
widely-promulgated.
