Medical malpractice

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.