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What is medical malpractice?

Last updated: Wednesday 17 September 2014


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.
How common is medical malpractice?
Diagnosis errors cause up to 160,000 deaths annually in the USA - making
diagnostic errors are one of the most dangerous and expensive mistakes made by
American doctors, estimated to cause between 80,000 and 160,000 deaths every year,
Johns Hopkins researchers reported in BMJ Quality and Safety (April 2013 issue).
The researchers examined data from over 350,000 malpractice claims in the
United States over the last 25 years. They reported that the majority of claims were
related to diagnostic errors, and that those errors frequently caused severe patient harm
and led to the biggest total payouts.
$38.8 billion were paid out in diagnosis-related payments between 1986 and 2010.
Team leader, David E. Newman-Toker, M.D., Ph.D., said "This is more evidence
that diagnostic errors could easily be the biggest patient safety and medical malpractice
problem in the United States. There's a lot more harm associated with diagnostic errors

than we imagined." According to a HealthGrades Patient Safety In Hospitals


Study, about 195,000 patients in the United States die each year from preventable
in-hospital medical errors. The authors added that out of 37
million Medicare hospitalizations from 2000 to 2002, there were 1.14 million patientsafety incidents.
There are between 15,000 and 19,000 malpractice suits against US doctors
annually.
Researchers from the University of California in San Francisco reported in JAMA
(Journal of the American Medical Association) that sexual misconduct and
prescribing to patients without any established clinical relationship are among
the most common violations of professionalism by physicians in the United States.
A study carried out by a team from St. Michael's Hospital, Canada, reported in
the journal Open Medicine thatbetween 2000 and 2009 a total of 606 Canadian
doctors were disciplined by the provincial medical licensing authorities. 92% of
those disciplined were men who had been practicing medicine for an average of 28.9
years. 99% of them were independent practitioners. The most common violations were
sexual misconduct (20%), issues regarding standard of care (19%), and unprofessional
conduct (16%). 62% of those who were disciplined were general practitioners, 14%
were psychiatrists, and 9% were surgeons.
A 2009 study carried out by researchers from Massachusetts General Hospital
(MGH) Department of Medicine found that the majority of American doctors will face
a malpractice lawsuit at some time during their professional careers. However, the
risk of having to pay out any money to a plaintiff is fairly low.
One in every three hospitalized patients in the USA encounters a hospital
error, says a report published in Health Affairs. The University of Utah researchers
revealed that errors made in hospitals were ten times more common than experts had
thought. Examples of hospital errors included:

Giving the patient the wrong dosage

Giving the patient the wrong medication

Leaving things inside the patient's body after surgery

Misdiagnosis

Operating on the wrong part of the body

Persistent back pain after surgery

Potentially fatal staph infections

Pressure ulcers (bedsores)

Characteristics for medical malpractice to be considered


According to expert malpractice lawyers in the USA, for medical malpractice to
be considered, a claim needs to have some broad characteristics:

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.

The elements in a malpractice case


The plaintiff - this is the patient, a legally designated person who acts on the patient's
behalf, or if the patient died, the executor/administrator of the patient's estate. In legal
terminology, the plaintiff is the person who brings a case against another in a court of
law, the person who initiates the suit, the one who is suing.

The defendant - this is the party who is being sued. In a medical malpractice suit it is
the health care provider, this could be the doctor, nurse, therapist - any medical
provider. Even those who were "following orders" may be liable for negligent acts.
The prevailing party - this is the party who wins the case; it might be the plaintiff or the
defendant. If the defendant wins the case, the plaintiff has lost and will receive no
compensation.
The losing party - the party who loses the case; the opposite of the prevailing party.
The fact-finder - the judge or jury.
The plaintiff has to prove that the four elements of the tort of negligence existed in order
to succeed in a medical malpractice claim:

A duty was owed by the health care provider or hospital.

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.
Compensatory and punitive damages
The plaintiff may be awarded compensatory and punitive damages.
Compensatory damages - may include economic damages, including lost earning
capacity, life care expenses, and medical expenses. Usually past and future losses are
assessed. Compensatory damages may also include non-economic damages, which
assesses the injury itself, psychological and physical harm, such as losing one's vision
or legs, extreme pain, and emotional distress.
Punitive damages - these are only awarded if the defendant is found guilty of malicious
or willful misconduct. Punitive damages is a form of punishment; compensation in
excess of actual damages.
The effect of malpractice suits on doctors
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.
How should doctors deal with complaints?
The Medical Defence Union, which is the UK's leading medical defence organization,
has these tips for UK doctors on responding to complaints:

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 Nordqvist


Copyright: Medical News Today