Medical malpractice is professional negligence by act or omission by a
health care providerA health care provider or health professional is an organization or person who delivers proper health care in a systematic way professionally to any individual in need of health care services.- Hospital :...
in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the
patientA patient is any person who receives medical attention, care, or treatment. The person is most often ill or injured and in need of treatment by a physician or other health care professional, although one who is visiting a physician for a routine check-up may also be viewed as a patient.The word...
. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain
professional liability insuranceProfessional liability insurance, also called Professional Indemnity Insurance, protects professional practitioners such as Quantity Surveyors,architects, home inspectors, lawyers, physicians, and accountants against potential negligence claims made by their patients/clients. Professional liability...
to offset the risk and costs of lawsuits based on medical malpractice.
A doctor would be liable for (depending on the circumstances) such things as prescribing experimental drugs and performing cosmetic surgery.
The party
The
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
is or was the patient, or a legally designated party 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
defendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute....
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 liabilityVicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...
or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.
Elements of the case
A
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
must establish all four elements of the tort of negligence for a successful medical malpractice claim.
- A duty was owed: a legal duty
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The...
exists whenever a hospital or health care provider undertakes care or treatment of a patientA patient is any person who receives medical attention, care, or treatment. The person is most often ill or injured and in need of treatment by a physician or other health care professional, although one who is visiting a physician for a routine check-up may also be viewed as a patient.The word...
.
- A duty was breached: the provider failed to conform to the relevant standard of care
In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care. A breach of the standard is necessary for a successful action in negligence....
. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquiturRes ipsa loquitur is a common law theory on the use of circumstantial evidence in tort liability on a negligence theory. The term comes from Latin and means "the thing itself speaks," but is more often translated "the thing speaks for itself." The theory allows the plaintiff to use circumstantial...
or the thing speaks for itself).
- The breach caused an injury: The breach of duty was a proximate cause
For English law, see Causation in English lawIn the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the...
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. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease.
The trial
Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.Alternatively, jurisdiction is the authority given...
. Between the filing of suit and the trial, the parties are required to share information through
discoveryIn American law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties and can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for...
. Such information includes
interrogatoriesIn law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of evidence and help to determine in advance what facts will be presented at any trial in the case.-Purpose of Procedure:The vast...
, requests for documents and
depositionIn law, a deposition is witness's out of court testimony that is reduced to writing for later use in court or for discovery purposes Black's Law Dictionary. In many countries, depositions are given in courtrooms. In the United States, they are usually taken elsewhere...
s. 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 proofThe burden of proof is the obligation to shift the assumed conclusion away from an oppositional opinion to one's own position. The burden of proof may only be fulfilled by evidence....
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 side is the most credible.
The fact-finder will render a
verdictIn law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In law, a verdict is the formal finding of fact made by a...
for the prevailing party. If the plaintiff 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
additurAn additur is the legal term referring to the practice of a trial judge adding damages additional to the original amount awarded by the jury. It is not allowed in U.S. federal courts, as held by Dimick v. Schiedt, 293 U.S. 474 ,. Some American states, however, allow the practice. See, e.g., Fisch...
. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for
remittiturA remittitur is a ruling by a judge lowering the amount of damages granted by a jury in a civil case...
. Either side may take an
appealIn law, an appeal is a process for requesting a formal change to an official decision.The specific procedures for appealing, including even whether there is a right of appeal from a particular type of decision, can vary greatly from country to country...
from the judgment.
Expert testimony
Expert witnessAn expert witness or professional witness is a witness, who by virtue of education, training, skill, or experience, is believed to have knowledge in a particular subject beyond that of the average person, sufficient that others may officially rely upon the witness's specialized opinion about an...
es 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 PharmaceuticalsDaubert v. Merrell Dow Pharmaceuticals, is a United States Supreme Court case determining the standard for admitting expert testimony in federal courts...
(509 U.S. 579 [1993]),
General Electric Co. v. Joiner (522 U.S. 136 [1997]), and
Kumho Tire Co. v. CarmichaelKumho Tire Co. v. Carmichael, , is a United States Supreme Court case that applied the Daubert standard to expert testimony from non-scientists.-Facts of the case:...
(526 U.S. 137 [1999]. Before the trial, a Daubert hearing 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 EvidenceThe Federal Rules of Evidence govern the admission of facts by which parties in the federal courts of the United States may prove their cases. They were the product of protracted academic, legislative, and judicial examination before they were formally promulgated in 1975...
as construed by Daubert.
In view of Daubert and Kuhmo, the pre trial preparation of expert witnesses is critical. 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.
Damages
The plaintiff's
damagesIn law, damages are money claimed by, or ordered to be paid to, a person as compensation for loss or injury Black's Law Dictionary.- Compensatory 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 damagesPunitive damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
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.
Statute of limitations
There is only a limited time during which a medical malpractice lawsuit can be filed. These time limits are set by
statuteA statute is a formal written enactment of a legislative authority that governs a country, state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by...
in a
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
legal system. In
civil lawCivil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which...
systems, similar provisions are usually part of the
civil codeA civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
or
criminal codeA Criminal Code is a compilation of government laws that outline a nation's laws regarding criminal offenses, and the maximum and minimum punishments that courts can impose upon offenders when such crimes are committed .-By country: Australian Criminal Code Criminal Code of Belarus Penal code of...
and are often known collectively as "periods of prescription" or "prescriptive periods." The length of the time period and when that period begins vary per jurisdiction and type of malpractice. For a full list of statute of limitations, see the article Medical Malpractice Statutes of Limitation.
Statistics
A 2004 study of medical malpractice claims in the United States examining
primary carePrimary care is a term used for the activity of a health care provider who acts as a first point of consultation for all patients. Continuity of care is also a key characteristic of primary care....
malpractice found that though incidence of negligence in hospitals produced a greater proportion of severe outcomes, the total number of errors and deaths due to errors were greater for outpatient settings. No single medical condition was associated with more than five percent of all negligence claims, and one-third of all claims were the result of misdiagnosis.
A recent study by Healthgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (
JAMAJAMA: The Journal of the American Medical Association is an international peer-reviewed general medical journal, published 48 times per year by the American Medical Association...
) in October 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic. Some researchers questioned the accuracy of the 1999 IOM study, reporting both significant subjectivity in determining which deaths were "avoidable" or due to medical error and an erroneous assumption that 100% of patients would have survived if optimal care had been provided. A 2001 study in
JAMAJAMA: The Journal of the American Medical Association is an international peer-reviewed general medical journal, published 48 times per year by the American Medical Association...
estimated that only 1 in 10,000 patients admitted to the hospital would have lived for 3 months or more had "optimal" care been provided.
A 2006 follow-up to the 1999 Institute of Medicine study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.
Most (73%) settled malpractice claims involve medical error. A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error "are not uncommon, but most [72%] are denied compensation. The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant." Physicians examined the records of 1452 closed malpractice claims. Ninety-seven percent were associated with injury; of them, 73% got compensation. Three percent of the claims were not associated with injuries; of them, 16% got compensation. 63% were associated with errors; of them, 73% got compensation (average $521,560). Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205). Claims not associated with errors accounted for 13 to 16% percent of the total costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs.
Criticism of medical malpractice lawsuits and 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. 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. 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, with medical malpractice lawsuits being the primary driver. 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 that there is no problem of increasing malpractice verdicts and insurance costs driving doctors out of business.
Malpractice has both direct and indirect costs, including "defensive medicine." Studies place the direct and indirect costs of malpractice between 5% and 10% of total U.S. medical costs, as described below: