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. A doctor would be liable for (depending on the circumstances) such things as prescribing experimental drugs and performing cosmetic surgery.

The Medical Malpractice Claim

The plaintiff 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 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.

Elements of the Case

A plaintiff must establish all four elements of the tort of negligence 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 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. 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 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 (>50%) 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 verdict 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 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.

Expert Testimony

Expert witnesses must be qualified by the Court, based on the prospective expert's 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 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. 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 admitted 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. Many states also require a certificate of merit before a malpractice lawsuit is filed, which requires a report from a medical doctor that the doctor accused of negligence breached the standard of care and caused injury to the plaintiff.

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 awarded only 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 statute in a common law legal system. In civil law systems, similar provisions are usually part of the civil code or criminal code 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.

Statistics

A 2004 study of medical malpractice claims in the United States examining primary care malpractice found that though incidences 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 Health Grades 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 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report ...