Professional Documents
Culture Documents
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3 Statute of limitations
4 Nature of malpractice and compensations
5 Arguments about the medical liability system
6 The case for medical liability reform
7 Limits on recovery
8 See also
9 References
1.
A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
2.
A duty was breached: the provider failed to conform to the relevant standard care.
3.
The breach caused an injury: The breach of duty was a direct cause and the proximate cause of the injury.
4.
Deviation from the accepted standard: It must be shown that the practitioner was acting in a manner which was contrary to the generally accepted
5.
Damage: Without damage (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was
negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease.
The trial[edit]
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 deposition. 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 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[edit]
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.[7] 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[8] 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:
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.[9] 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.[10]
Many states also require that a certificate of merit before a malpractice lawsuit be filed which requires a report from a medical physician that the physician accused
of negligence breached the standard of care and caused injury to the patient.
Damages[edit]
The plaintiff's damages may include compensatory and punitive damages.[11] 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.[12] 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 or 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.[13]
Statute of limitations[edit]
Main article: 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. 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. Therefore each state has different time limits set.
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The majority of the American public supports reforms to the malpractice system. However, surveys show that the majority of the American public also vastly
underestimate the extent of medical errors.[25] Recent research has shown that while both health consumers and health producers are concerned about some of
the adverse consequences of healthcare litigation, health consumers perceive that increased healthcare litigation can reduce the incentives for negligence on the
part of healthcare providers.[26]
At the same time, studies of these claims have found[27][28][29][30] that there is no problem of increasing malpractice verdicts and insurance costs driving doctors out of
business.
Limits on recovery[edit]
Many jurisdictions have reformed medical malpractice recovery in an effort to decrease hospital and physician costs. In California, for example, recovery for noneconomic damages are limited to $250,000. Non-economic damages are costs that are not actually incurred, such as pain and suffering or mental anguish. States
have enacted such laws in order to keep health care costs low, in addition to helping curb medical malpractice litigation.
Texas law creates the most difficult "hurdles" in the United States for a plaintiff to succeed in recovering damages for any medical malpractice, even for
such objective cases such as an emergency room exposure to theEbola virus disease.[42]
Conclusions
The status of at least a majority of doctors in India has been reduced to mere traders: traders of pain. The blatant insensitivity in the dealings between doctors and
their patients resembles medieval markets where there is no place for humanity or compassion. The medical profession is seen just as another money minting job,
which does not have the basic decency to take into consideration the pain and suffering of a fellow human being who has put all his hopes on the doctor. The
reasons for the falling standards of doctors: both ethically and professionally are, the lust for money, partisan government policies, which favors the rich and the
powerful, and an appalling lack of discipline and humanity in the dealings of the doctors.
Medical malpractice refers to professional negligence by a health care professional or provider in which treatment provided was substandard, and
caused harm, injury or death to a patient. In the majority of cases, the medical malpractice or negligence involved a medical error, possibly in diagnosis,
medication dosage, health management, treatment or aftercare. The error may have been because nothing was done (an act of omission), or a negligent act.
Medical malpractice law provides a way for patients to recover compensation from any harms resulting from sub-standard treatment. The standards and
regulations for medical malpractice differ slightly from country-to-country; even within some countries, jurisdictions may have varying medical malpractice laws.
A hospital, doctor or other health care professional is not liable for all the harms a patient might suffer. They are only legally responsible for harm or injuries that
resulted from their deviating from the quality of care that a competent doctor would normally provide in similar situations, and which resulted in harm or injury for
the patient.
A team from the University of Illinois reported in Annals of Pharmacotherapy that blood thinners make up about 7% of all medication errors in hospitalized
patients. Blood thinners are prescribed to lower the risk of stroke and heart attack by preventing clots from developing in the veins and arteries.
Primary care doctors mainly sued for drug errors and missed diagnoses - researchers reported in BMJ Open that most malpractice suits against primary
care doctors in the USA, UK, Australia, France and Canada are for missed diagnoses (mainly related to cancer, heart attack and meningitis) and drug errors.
Misdiagnosis
Failure to provide a proper standard of care - the law states that there are recognized medical standards by which a health care professional should adhere
to when providing care for patients. The medical profession recognizes these standards.
Patients have the right to expect to receive these standards when being treated. If the standard care is seen to be violated, there may have been negligence.
An injury was the consequence of negligence - a claim cannot be made if the patient feels the doctor or hospital was negligent if it resulted in no harm or
injury. The patient has to prove that the negligence caused the injury or harm, and that it would not have occurred had the health care provider or professional
not been negligent.
If the patient is not happy with his/her outcome, that in itself is not malpractice. It is only malpractice when it is proven that the negligence caused the harm or
injury. An injury with no negligence is not malpractice, and neither is apparent negligence if there is no injury.
The patient's injury must have very damaging consequences - lawyers say that for a malpractice suit to succeed, the patient has to show that the injury or
harm caused by the medical negligence resulted in considerable damages. Lawsuits are very costly to follow through to the end. Examples of considerable
damage include suffering, enduring hardship, having to live in constant pain, considerable loss of income, and injury that disabled the patient.
If the injury is minor, the patient will probably spend more on the lawsuit than the eventual money recovered.
Informed consent - if the patient does not give "informed consent" to a medical procedure, the doctor or health care provider may be liable if the procedure
results in harm or injury, even if it was carried out flawlessly. For example, if a surgeon did not inform the patient that a surgical procedure had a 30% risk of
losing a limb, and that patient lost a limb, the doctor would be liable, even if the operation was done perfectly, because the patient may have opted not to go
ahead if he/she had been informed of the risks.
A study led by Harvard Medical School researchers revealed that a sizeable minority of practicing doctors do not think patients should always be told
the whole truth.
A duty was breached - the health care provider or hospital did not conform to the expected standard of care
The breach resulted in an injury - the breach was closely linked to the injury
Damage - the patient suffered considerable damage, either physical, emotional or pecuniary (financial).
As occurs in all tort cases, the plaintiff or the legal representative files a lawsuit in a court of law. Before the trial begins, the plaintiff and the defendant have to
share information through discovery; this may include requests for documents, depositions, and interrogatories. The parties can, if they come to an agreement,
settle out of court, and the case will not go to trial. If they do not agree, the case will proceed to trial.
The burden of proof is on the plaintiff, who has to prove compellingly that the defendant was negligent. In most trials, both the defendant and plaintiff will present
experts to explain what standard care was required. The fact-finder must then consider all the evidence and decide which party is the most credible.
A verdict will be rendered by the fact-finder for the prevailing party. If it is the plaintiff, the judge will then decide on damages.
The losing party may move for a new trial. In some courts, if the plaintiff wants a larger settlement, they may move for additur (assess the damages and award a
larger amount). If the defendant is dissatisfied with a large judgment, they may move for remittitur (for the court to reduce the amount of damages). Either party
may take an appeal from the judgment.
Malpractice suits against surgeons in the USA are common, and can have a profound impact on the surgeon's wellbeing, resulting in stress, professional
dissatisfaction and emotional exhaustion, a study revealed. The study, which was published in the Journal of the American College of Surgeons, November 2011
issue, found that lawsuits were strongly and independently associated with surgeon depression and career burnout.
The authors wrote that surgeons who had gone through a recent malpractice lawsuit were more likely to be dissatisfied with their careers, and would probably
advise their children and others to pursue on-surgical or non-medical careers.
Investigate all complaints thoroughly. Talk to whoever is complaining about what concerns them, and what outcome they are expecting. Have a clear plan in
place, and tell the complainant how long the investigation will take and when they should expect a response.
Invite the complainant(s) to talk to the staff who are involved in the complaint. Possibly seek the help of a conciliator.
Take the concern seriously, take measures to make sure they do not occur again. Make sure your response is appropriate and balanced.
Remaining objective is vital. The reviewer should ideally be directly involved in the complaint, but should not be the person the complainant has a problem with.
If appropriate, seek out an independent clinical opinion (make sure the complainant is happy with that)
Apologize where appropriate, be open and honest, and acknowledge any errors and distress caused
Set up a system which reviews and learns from complainants. Make sure the complainant is told of every action you are taking.
Written by Christian N
Malpractice
The breach by a member of a profession of either a standard of care or a standard of conduct.
Malpractice refers to Negligence or misconduct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet a standard of care or stand
ardof conduct that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of error.
After the 1970s the number of malpractice suits filed against professionals greatly increased. Most malpractice suits involved doctors, especially surgeons and other specialists
whoperformed medical procedures with a high degree of risk to their patients. Large damage awards against doctors resulted in higher malpractice insurance costs. Similarly, th
eincrease of malpractice awards against lawyers led to higher insurance premiums and caused some insurance companies to stop writing malpractice policies altogether.
The typical malpractice suit will allege the TORT of negligence by the professional. Negligence is conduct that falls below the legally established standard for the protection of oth
ersagainst unreasonable risk of harm. Under negligence law a person must violate a reasonable standard of care. Typically this has meant the customary or usual practice ofme
mbers of the profession. For example, if a surgeon leaves a sponge or surgical tool inside a patient, the surgeon's carelessness violates a basic standard of care. Likewise, if an
attorney fails to file a lawsuit for a client within the time limits required by law, the attorney may be charged with negligence.
Medical Malpractice
Among physicians, malpractice is any bad, unskilled, or negligent treatment that injures the patient. The standard of care formerly was considered to be the customary practice
of aparticular area or locality. Most states have modified the "locality rule" into an evaluation of the standard of practice in the same or similar locality, combined with an examina
tion ofthe state of development of medical science at the time of the incident. This modification has taken place as medicine has become increasingly uniform and national in sc
ope. Amajority of states define the standard of conduct as that degree of skill and learning ordinarily possessed and used by other members of the profession. A doctor who has
met thestandard, as established by Expert
Testimony at trial, cannot generally be found negligent. Some states have passed statutes that establish the standard of the profession as thetest of whether particular treatment
was negligent.
Specialists within the medical field are generally held to standards of care that are higher than those for general practitioners. In addition, a specialist or anyone undertaking top
erform procedures ordinarily done by a specialist will be held to the level of performance applied to that specialty, although the person may not actually be a certified specialist in
that field.
A small number of states apply the "respectable minority rule" in evaluating doctors' conduct. This rule exempts a physician from liability where he chooses to follow a technique
used only by a small number of respected practitioners. Courts, however, frequently have difficulty in determining what is a respectable minority of physicians or acceptable sup
portfor a particular technique.
Some states use the "error in judgment rule." This principle holds that a medical professional who otherwise subscribes to applicable professional standards should not be found
tohave committed malpractice merely because she committed an error in judgment in choosing among different therapeutic approaches or in diagnosing a condition.
Medical malpractice cases arise when a patient is harmed by a doctor or nurse (or other medical professional) who fails to provide proper health care treatment. Fortunately, doctors, nurses,
and hospitals make mistakes in a small number of cases. But within that small minority of cases, certain types of errors crop up more often than others. Read on to learn about the doctor and
hospital mistakes that make up the bulk of medical malpractice lawsuits.
A word of caution on the types of medical errors described below: Keep in mind that just because a doctor made a mistake or a patient was unhappy with a course of treatment or its outcome,
that doesn't mean malpractice necessarily occurred. In order to meet the legal definition of medical malpractice, the doctor or medical provider must have been negligent in some way -meaning the doctor was not reasonably skillful or competent, and that incompetence harmed the patient. (To learn more about what does and does not constitute medical malpractice, see Nolo's
article Medical Malpractice Basics.)
Childbirth Injuries
A number of fetal injuries can be caused by medical malpractice, including brain injuries (such as cerebral palsy and seizure disorders), fractured bones, and erb's and klumpke's palsy
(damage to nerves that control the arms and hands). However, keep in mind that these injuries are more often caused by something other than medical malpractice.
A physician or obstetrician's negligence can happen during childbirth or long before.
Negligent prenatal care. If negligent medical treatment is provided during the pregnancy, it could harm the fetus or the mother (or both). Some examples of negligent prenatal care include the
physician or obstetrician's:
failure to diagnose a medical condition of the mother, such as preeclampsia, Rh incompatibility, hypoglycemia, anemia, or gestational diabetes
failure to identify birth defects
failure to identify ectopic pregnancies, or
failure to diagnose a disease that could be contagious to the mother's fetus (such as genital herpes or neonatal lupus).
Negligence during childbirth. A doctor's negligence during childbirth could cause injury to the baby and harm to the mother. Common medical errors during childbirth include the physician or
obstetrician's:
failure to anticipate birth complications due to the baby's large size or because the umbilical cord got tangled
failure to respond to signs of fetal distress
failure to order a cesarean section when one was appropriate, or
incompetent use of forceps or a vacuum extractor.
(To learn more about birth injuries, see Nolo's article Birth-Related Medical Malpractice.)
Medication Errors
According to a 2006 study, medication errors harm approximately 1.5 million people in the United States every year. Medication errors can occur many ways -- from the initial prescription to the
administration of the drug. For example, a patient might be harmed if the doctor prescribes the wrong medication. Or the patient might be harmed by medication that the doctor prescribes to
treat a misdiagnosed condition. In a hospital setting, the right drug might be given to the wrong patient.
However, by far the most common medication errors involve dosage -- the patient gets too much or too little of a drug. This can happen several ways:
Anesthesia Errors
Anesthesia mistakes are usually more dangerous than surgery mistakes. Even a small error by the anesthesiologist can result in permanent injury, brain damage, or even death. An
anesthesiologist can commit medical malpractice even before anesthesia is administered by:
Surgery Errors
Some medical malpractice claims arise from mistakes made in the operating room. A surgeon might be negligent during the operation itself (puncturing internal organs, operating on the wrong
body part, or leaving surgical instruments in the body) or the nursing staff might be negligent in administering post-op care (which could result in complications like serious infection).