Malpractice Law

Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. In the United States and other countries, a specific medical malpractice law has developed. In English law, the issue of liability is a subset of professional negligence where, under the Bolam Test, a doctor will be liable unless shown to have acted in accordance with a reasonable body of medical opinion. In Australia, this test has been replaced but the principles are comparable.


 

• 1The medical malpractice claim
• 2Medical malpractice statistics
• 3Medical Malpractice Law -- Index of States
• 4Medical Malpractice Forum
• 5External Links

[top]The medical malpractice claim

• The parties
• Elements of the case
• The trial
• Expert testimony
• Damages

The parties
The plaintiff is the patient, a legally designated party acting on behalf of the patient, or by the executor or administrator of a deceased patient's estate (in the case of a wrongful death suit).

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. Relying on vicarious liability, claims may also be brought against hospitals, clinics, or medical corporations for the mistakes of their employees.


Elements of the case
A plaintiff must establish all four of the following elements, for a successful medical malpractice claim.

• 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 loquitor 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.

The trial
Like all other tort cases, the plaintiff (or the plaintiff's attorney) files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties (or their attorneys) are required to 'share information' through a process known as discovery. Such information includes interrogatories, requests for documents, and depositions. If both parties agree, the case may be settled early 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 during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible.

The factfinder will render a verdict for the prevailing party, and asseses the compensatory and punitive 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. A plaintiff who is dissatisfied by a small judgment may move for additur. A defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.


Expert testimony
Expert witnesses must be qualified by the Court, based on the propsective 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 reliabilty. 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 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.


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.

[top]Medical malpractice statistics

Statistics on malpractice and preventable medical error

Medical malpractice claims can help identify areas where primary health care in the United States needs improvement, according to the American Academy of Family Physicians. The Academy refers to a study entitled "Learning from Malpractice Claims about Negligent, Adverse Events in Primary Care in the United States", in suggesting that the medical community can learn from tort claims. In that study, researchers looked at primary care malpractice claims settled between 1985 and 2000 in the United States. The study focused on a subset of 5,921 claims that were clear errors. The researchers found:

• 68 percent of the errors were in outpatient settings and resulted in more than 1,200 deaths.
• Negligence was more likely to have severe outcomes when they occurred in hospitals, but the total number of high severity outcomes and death was larger in the outpatient setting.
• Of the 10 most prevalent medical conditions with error-related claims, no single condition accounted for more than five percent of all negligent claims.
• Diagnostic error accounted for more than one-third of the claims.

A recent study by Heathgrades 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 (JAMA) in October of 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.

A 2006 follow-up to the 1999 Institute of Medicine of the National Academies 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.

[top]

Medical Malpractice Law -- Index of States

Summary of Medical Malpractice Law

by McCullough, Campbell and Lane LLP

CONTENTS

• Statutes of Limitations
• Contributory or Comparative Negligence
• Joint and Several Liability
• Contribution
• Vicarious Liability
• Expert Testimony
• Damage Caps
• Statutory Cap on Attorneys' Fees
• Periodic Payments
• Collateral Source Rule
• Pre-Judgment Interest
• Patient Compensation Funds
• Immunities
• Arbitration

Alabama Malpractice Law
Alaska Malpractice Law
Arizona Malpractice Law
Arkansas Malpractice Law
California Malpractice Law
Colorado Malpractice Law
Connecticut (revised 2007) Malpractice Law
Delaware Malpractice Law
District of Columbia Malpractice Law
Florida Malpractice Law
Georgia Malpractice Law
Hawaii Malpractice Law
Idaho Malpractice Law
Illinois (revised 2002) Malpractice Law
Indiana Malpractice Law
Iowa Malpractice Law
Kansas (revised 2002) Malpractice Law
Kentucky Malpractice Law
Louisiana Malpractice Law
Maine Malpractice Law
Maryland Malpractice Law
Massachusetts Malpractice Law
Michigan (revised 2002) Malpractice Law
Minnesota Malpractice Law
Mississippi (revised 2007) Malpractice Law
Missouri Malpractice Law
Montana Malpractice Law
Nebraska Malpractice Law
Nevada Malpractice Law
New Hampshire Malpractice Law
New Jersey Malpractice Law
New Mexico Malpractice Law
New York Malpractice Law
North Carolina Malpractice Law
North Dakota Malpractice Law
Ohio (revised 2006) Malpractice Law
Oklahoma Malpractice Law
Oregon (revised 2003) Malpractice Law
Pennsylvania (revised 2007) Malpractice Law
Rhode Island Malpractice Law
South Carolina Malpractice Law
South Dakota Malpractice Law
Tennessee Malpractice Law
Texas (revised 2007) Malpractice Law
Utah Malpractice Law
Vermont Malpractice Law
Virginia (revised 2003) Malpractice Law
Washington Malpractice Law
West Virginia Malpractice Law
Wisconsin Malpractice Law
Wyoming Malpractice Law

[top]

Medical Malpractice Forum

Negligent healthcare and malpractice lawsuits. Includes doctor, dentist, druggist, hospital and nursing home malpractice.

Latest threads from the forum Medical Malpractice

 

[top]External Links

Medical Malpractice Law in the United States - Report

Florida Medical Malpractice Site

Medical Malpractice Summary Index of States - McCullough, Campbell and Lane LLP Summary of Medical Malpractice Law.

Medical malpractice - From Wikipedia, the free encyclopedia




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