What Is Medical Malpractice?
Responsible. Competent. Experienced. You think of physicians having all these qualities. You put your life in their hands. Yet, sometimes things go awry.
When things go wrong and the actions of a medical professional harm you, he or she has failed to fulfill professional obligations to you. There was failure in the doctor’s performance of their medical responsibilities.
Medical malpractice occurs when a patient is harmed by a doctor or other medical entity.
Each state has its definitive laws regarding medical malpractice. Besides the details of the concern, these rules usually mention such items as dates of the incident and whether you need to notify the physician or medical facility of your intent.
General guiding principles cover an array of categories that apply to the majority of malpractice cases. The rules about medical malpractice — from when you must bring your lawsuit to whether you must notify the doctor ahead of time — vary from state to state. But there are some general principles and broad categories of rules that apply to most medical malpractice cases. Here is an introduction to the law and some of the rules governing medical errors.
Medical malpractice occurs when a patient is harmed by a doctor’s or other health care provider’s actions or is harmed by their failure to do something. When understanding what is medical malpractice, it is important to note that all medical mistakes are not malpractice. A mistake is only considered malpractice if there is negligence. The medical malpractice definition is that the health care provider did not follow the standard of care in the profession in that area. The mistake the health care provider made must actually result in harm to the patient. The question always asked in medical malpractice cases is whether a reasonably competent health care professional in the same situation would have made the same decision. If the answer is no, then there may be grounds for a medical malpractice lawsuit.
Malpractice can happen at any stage in treatment or in any type of medicine. Failing to diagnose a patient as having a heart attack, providing the wrong diagnosis to a sick patient thus delaying treatment, giving a patient someone else’s medication, operating on the wrong body part, or giving a baby an adult dose of a medication are all examples of medical malpractice.
Over 160,000 people die from medical malpractice each year in the United States. To keep this from happening to you, use only physicians who are board certified in their specialty. Get referrals from your primary care provider. Get second opinions for serious diagnoses or if you feel you have been incorrectly diagnosed. Ask questions about everything, including what medication you are being given and at what dose whether you are at home or in a hospital.
Do You Have a Case?
If you have been injured due to bad medical care you may wish to sue. To determine if yours is one of the viable medical malpractice cases that win settlements, you need to determine if your case meets the requirements set by your state. While these can differ, in general your health care provider must have failed to provide the minimum standard of care that is reasonable in a situation such as yours. The negligence must actually cause a personal injury to you and the injury must have had a serious impact on you such as pain and suffering, mistaken removal of a body part, or inability to work.
Malpractice is also possible if you did not give informed consent to the treatment. The health care provider must tell you about possible adverse outcomes, side effects, and expected results from the treatment and you must agree to undertake the treatment given those facts. If you were not advised about any of this, you may have a case as well. An example is if a doctor did not tell you he might have to remove your lung as part of a surgery. You couldn’t agree to this because you didn’t know it was a possibility, so if he removes the lung, and you can sue.
How to Find an Attorney
If you are interested in pursuing a personal injury case for medical malpractice, you will need a medical malpractice attorney. Your local bar association may have an attorney referral program you can access. If you have used another attorney in the past, ask him or her for a referral to a medical malpractice lawyer. You will want to work with someone who has a lot of experience handling this type of case. Set up consultations with several attorneys before choosing the one you feel most comfortable with. It is common for an attorney to take a percentage of your settlement or award as the fee and not to charge a fee if the case is lost.
What to Expect in a Malpractice Case
Every state has a medical malpractice statute of limitations, a time frame in which your case must be filed. However there is usually an exception called the discovery rule. For example, if you found out several years later that your doctor did a bypass on the wrong artery, but the statute of limitations is up, you are given a specific amount of time from the date of discovery of the mistake to file your case.
Your attorney will interview you about your situation and have you see another physician to get an independent opinion. Your health care provider has medical malpractice insurance and will be represented by the attorney for the insurance company. Most cases start out with a discovery process where information is exchanged. You and the health care provider will likely be deposed. Your attorney will work on reaching a settlement. If a settlement can’t be reached, your case will go to trial.
Medical malpractice cases are very common, but it is important to work with an attorney who understands your specific case and has a lot of experience with your type of case.
If you have been the victim of medical malpractice, LegalZoom might be able to help you receive what you are entitled to. Get a free personal injury evaluation and discuss your options and settlement possibilities with a lawyer.
Standard Of Care
Malpractice can be caused by various actions or failures to act, but the main cause of medical malpractice always boils down to negligence. This is because malpractice is simply a fancy word for negligence. So, medical malpractice is the same thing as medical negligence.
In general, negligence means not exercising reasonable care or doing something wrong. Negligence is based on what lawyers call the “reasonable person” standard. If a reasonable person would have done a certain action, then not doing that action would be negligent. Alternatively, if a reasonable person would not have done a certain action, then doing that action would be negligent.
However, in medical malpractice cases, most courts do not use the reasonable person standard. In medical malpractice cases, most courts define negligence as a health care provider’s failure to exercise the proper standard of care. In this article, we’ll explain what that means.
What Does ‘Standard of Care’ Mean?
Standard of Care
A written statement describing the rules, actions, or conditions that direct patient care. Standards of care guide practice and can be used to evaluate performance.
If you have a medical malpractice case (or think that you might have a medical malpractice case), you may have heard of the concept of standard of care, but what does it actually mean?
The first thing to know is that standard of care is a legal term. It is not a medical term. That means that it is primarily lawyers, not doctors, who use the term. In general, the only times that most doctors talk or think about the standard of care is when they are testifying in court on medical malpractice cases or when they are attending medical malpractice seminars.
Standard of care means the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the medical knowledge that is available to the physician. Another way to describe the term is that the standard of care is based on the customary practices of the average physician, i.e., what the average physician would customarily or typically do in similar circumstances.
Injuries Are Caused By Negligence
(redirected from Medical negligence)
Also found in: Medical.
Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other healthcare professional.
Negligence is the predominant theory of liability concerning allegations of medical malpractice,making this type of litigation part of Tort Law. Since the 1970s, medical malpractice has been a controversial social issue. Physicians have complained about the large number of malpractice suits and have urged legal reforms to curb large damage awards, whereas tort attorneys have argued that negligence suits are an effective way of compensating victims of negligence and of policing the medical profession.
A person who alleges negligent medical malpractice must prove four elements: (1) a duty of care was owed by the physician; (2) the physician violated the applicable standard of care; (3) the person suffered a compensable injury; and (4) the injury was caused in fact and proximately caused by the substandard conduct. The burden of proving these elements is on the plaintiff in a malpractice lawsuit.
Physicians, as professionals, owe a duty of care to those who seek their treatment. This element is rarely an issue in malpractice litigation, because once a doctor agrees to treat a patient, he or she has a professional duty to provide competent care. More important is that the plaintiff must show some actual, compensable injury that is the result of the alleged negligent care. Proof of injury can include the physical effects of the treatment performed by the physician, but it can also include emotional effects. The amount of compensation at issue is usually a highly contested part of the litigation.
Causation may also be a vigorously litigated issue because a physician may allege that the injuries were caused by physical factors unrelated to the allegedly negligent medical treatment. For example, assume that a physician is sued for the negligent prescription of a drug to a patient with coronary artery disease and that the patient died of a heart attack. The plaintiff’s estate cannot recover damages for the heart attack unless there is sufficient proof to show that the medication was a contributing cause.The critical element is standard of care, which is concerned with the type of medical care that a physician is expected to provide. Until the 1960s the standard of care was traditionally regarded as the customary or usual practice of members of the profession. This standard was referred to as the “locality rule,” because it recognized the custom within a particular geographic area. This rule was criticized for its potential to protect a low standard of care as long as the local medical community embraced it. The locality rule also was seen as a disincentive for the medical community to adopt better practices.
Most states have modified the locality rule to include both an evaluation of the customary practices of local physicians and an examination of national medical standards. Physicians are called to testify as expert witnesses by both sides in medical malpractice trials because the jury is not familiar with the intricacies of medicine. Standards established by medical specialty organizations, such as the American College of Obstetricians and Gynecologists, are often used by these expert witnesses to address the alleged negligent actions of a physician who practices in that specialty. Nonconformance to these standards is evidence of negligence, whereas conformance supports a finding of due care.
Other rules govern the standard of care evaluation. A few states apply the “respectable minority rule” in evaluating a physician’s conduct. This rule holds that a physician is not negligent merely by electing to pursue one of several recognized courses of treatment. Some states use the “error in judgment rule.” This principle exempts a physician from liability if the malpractice is based on the physician’s error in judgment in choosing among different methods of treatment or in diagnosing a condition.
Medical malpractice litigation began to increase in the 1960s. Tort lawyers were able to break the traditional “conspiracy of silence” that discouraged physicians from testifying about the negligence of colleagues or serving as expert witnesses. By the 1970s physicians alleged that malpractice claims were interfering with their medical practices, with insurance companies either refusing to write malpractice policies for them or charging inflated premiums.
Over the years, physicians and health care providers argued that malpractice claims were also driving up the cost of health care. They contended that jury verdicts in the millions of dollars had to be passed on to the consumer in the form of higher insurance premiums and physician fees. In addition, many physicians were forced to practice “defensive medicine” to guard against malpractice claims. Defensive medicine refers to the conducting of additional tests and procedures that are not medically necessary but that would assist in defeating a negligence claim.
In response to rising malpractice suits, many states pushed for “tort reform” measures. Such measures limit the amount of damages a patient can recover for non-economic losses, such as pain and suffering, and Punitive Damages. For example, in 1975, California enacted the Medical Injury Compensation Reform Act, which limits recovery of noneconomic damages at $250,000 and restricts the amount of fees that may be recovered by lawyers. Several other states adopted similar measures based on the California model.
The medical community, however, continued to fight for widespread tort reform among the states,and at the national level. They cited insurance increases in the late 1990s and early 2000s, which put further pressure on doctors’ and hospitals’ earnings — earnings that had been shrinking under Managed Care. Some areas of medicine were particularly hard hit. In New York and Florida, for example, obstetricians, gynecologists, and surgeons—the doctors who are sued the most frequently—pay more than $100,000 a year for $1 million in coverage.
In 2003, President george w. bush addressed the medical community’s concerns by endorsing legislation that would place a $250,000 cap on noneconomic damages at the national level. According to Bush, who spoke before an American Medical Association (AMA) advocacy conference, “There are too many frivolous lawsuits against good doctors, and the patients are paying the price.” The president cited the fact that the federal government suffers losses of $28million per year as a result of liability insurance and defensive medicine practices.
Critics who contest tort-reform laws argue that medical malpractice awards account for only one percent of the total yearly National Health Care expenditures. They also claim that such reforms protect insurance companies and physicians, and not the patients. Trial attorneys point the finger at the insurance companies. They claim that insurers keep prices artificially low while competing for market share and new revenue. When the economy is sluggish and the market is slow, they increase premiums because they are no longer able to use Stock Market gains to subsidize low rates. Proponents of reform continue to maintain, however, that a federal cap will ultimately result in lower medical costs and greater medical access for the general population.
Damages Resulted from the Injury: loss or harm resulting from injury to person, property, or reputation flood damage sustained from severe damage to her knee
2damages plural : compensation in money imposed by law for loss or injury The judge awarded them $5,000 in damages.
Medical Negligence vs. Medical Malpractice
A person who has suffered an injury relies on the legal concept of “negligence” to establish another person’s fault for the underlying accident. So, what is negligence? It may be best explained through an illustration of some of the key elements that go into any negligence claim: duty of care, and the “breach” of that duty.
“Duty of care” is a legal term that refers to the responsibility one person has to avoid causing harm to another. In a personal injury claim or lawsuit, the first step in proving that another person was negligent is to establish that he or she had a duty of care in the situation that gave rise to the injury. The injured person (the plaintiff) will then need to show exactly how the other party (the defendant) failed to meet that duty — in other words, how the defendant’s conduct “breached” the duty of care. Once this breach is established, the last step in proving negligence is to show that the plaintiff suffered real injuries that were caused by that breach.
In the sections below, we’ll take a closer look at these key elements of a personal injury claim or lawsuit.
Duty of Care and Personal Injury Lawsuits
For a plaintiff in an injury case, demonstrating a breach of care requires showing that actions taken or not taken by the defendant failed to meet the required level of reasonable care under the circumstances. But what exactly is the appropriate standard of care in a given situation, or in different types of personal injury cases? It depends on the facts of each individual cases. But let’s look at a traffic accident — and a resulting insurance claim or personal injury lawsuit — as an example.
A vehicle driver has a legal duty to operate his or her vehicle with reasonable care at all times, which includes taking into consideration factors like traffic conditions, weather, and visibility.
State legislatures have enacted vehicle codes and traffic codes which identify drivers’ legal obligations in some situations (yielding) and prohibit certain driving-related conduct in other scenarios (driving above the speed limit). So in most cases, if Driver A violates a driving law, he or she will be said to have breached the duty of care to other drivers, passengers, and pedestrians, if Driver A’s conduct caused an accident in which others were injured.
Here are some more examples of the duty of care in other kinds of injury-related cases:
- In a slip and fall case, a property or business owner has a legal obligation to keep the premises free from known hazards, and must act within a reasonable time to discover and remedy other dangers as they present themselves.
- In a medical malpractice case, a doctor or other medical professional must provide treatment with the same level of skill and care that a reasonably competent health care provider would act with under similar circumstances (here you look to the prevailing medical standards and practices in the same field or medical specialty, which is often established by medical expert witnesses).
- In a defective product case, the manufacturer, distributor, and seller of a consumer product all have a legal duty to produce and sell products that are free of unreasonable or unexpected dangers to consumers.
Once the duty of care is established, the plaintiff’s job (usually through his or her attorney) is to establish exactly how the defendant violated (or “breached”) that standard of care. What did the defendant do (or fail to do) that made his or her conduct unreasonable under the circumstances? In other words, how exactly should the defendant be considered legally at fault for causing the plaintiff’s injuries?
Going back to the car accident example, fault can be established by:
- showing that the defendant violated a traffic law (maybe a police officer’s report contains such a finding)
- by the testimony of eyewitness to the accident,
- by the plaintiff’s own testimony as to what happened, and
- by the examination of evidence at the accident scene, including vehicle damage.
In some cases, the plaintiff’s own conduct may have played a role in causing his or her injuries (alongside the defendant’s own negligence). Continuing with the car accident scenario, the defendant may have indeed made an abrupt left turn in front of the plaintiff’s vehicle (a clear example of negligent driving) but if the plaintiff was driving a few miles an hour over the speed limit, the insurance adjuster or the jury might decide that the plaintiff’s own negligence was at least a factor in causing the accident. In that case, the plaintiff’s total compensation or damages award will be reduced by an amount equal to the percentage of his or her fault. That’s the rule in most states. (Learn more about comparative fault.) But in a few states that follow a system known as contributory negligence, if a plaintiff is found to be even one percent to blame for causing the accident, he or she won’t be able to collect any damages at all from other at-fault defendants.
The last step in establishing negligence is to show how the plaintiff was harmed by the defendant’s action (or inaction). We’ve got this element covered in other sections of this website: Learn more about injury damages and the damages formula.
Causes of Medical Malpractice
The chart above outlines the broad categories of successful medical malpractice lawsuits. Behind each of them lie multiple reasons for their happening. Here is a sample:
Inadequate Diagnoses: Failure to properly diagnose a patient is a dangerous mistake that can cause the patient additional pain, expenses or even end their life.
If a patient is diagnosed incorrectly, the patient may receive treatment for a problem that does not exist – medications or other procedures that will make him/her sick in new ways.
When patients are diagnosed too late, their condition may worsen or become untreatable. In particular, if cancer is not properly diagnosed it gains a tighter foothold in the patient’s body and makes treatment difficult if not impossible.
And when diseases or conditions are not diagnosed at all, the condition may result in death. Failure to diagnose and competently treat a patient will ensure that the patient does not heal. A medical provider should never give up on testing or treatment until the patient is healthy again.
Surgical errors: Surgical errors can take many forms, including wrong site surgery. However, most of these surgical errors can be avoided easily by doctors who initiate clear communication and follow established procedures, including initializing the surgery site beforehand. Other common surgical complications include acute respiratory failure, post-operative infections, blood clots, metabolic problems, poor nursing care, or wound reopening.
Anesthesia mistakes: The art of putting patients “under” for surgery is not always exact. Standard procedures require that anesthesiologists check the weight and physical condition of the patient. They also check for drug allergies and any history of illness that could have an impact on the effectiveness of anesthesia.
Common errors include
- Dosage error
- Delayed anesthesia delivery
- Failure to monitor the patient
- Hazardously prolonged sedation
- Failure to recognize and respond to anesthesia complications
- Failure to properly inform a patient of instructions for before, during or after the procedure
- Faulty equipment
- Other major malpractice areas
Lack of Informed Consent: Perhaps the most critical step for a doctor beginning medical treatment is obtaining informed consent from the patient. The physician must discuss the patient’s diagnosis, various treatment options, and risks involved with either accepting or refusing treatments. Only after that discussion can a patient make that informed decision on his/her behalf.
If patients are not informed about all potential treatments, they are not given the opportunity to make decisions about medical action. Uninformed patients have also may not heard all of the risks that may be involved with treatment, and they have not had the chance to bring up important health concerns.
Doctors who treat patients against their wishes are doing so with a reckless disregard for the patient’s rights. Patients retain the last say in their medical treatment. It is a patient’s choice what may, or may not, be done to the body. An exception is made in emergencies, since the patient may not be conscious or coherent. If a patient’s condition is life-threatening, and a medical professional cannot obtain informed consent, the law states that the provider may attempt to save the patient’s life. Medical malpractice typically can not apply to emergency situations.
It’s not just doctors: Hospital employees, such as paramedics, nurses, and medical technicians, can be responsible for negligence charges against a hospital. Serious injuries and even death to patients can be the result of this hospital negligence, as these patients may provide the bulk of the care to patients.
When patients enter a hospital, they believe their care will adhere to the usual conventional standards. However, due to a number of possible factors, such as understaffing or overworking, patients may not receive the care from these professionals they deserve.
Trends in Medical Malpractice
Estimates of deaths due to medical errors or negligence vary widely. A compilation of studies published by the Civil Justice Resource Group indicates as many as 200,000 hospital patients die due to medical accidents and of those up to 120,000 are due to negligence. Another study in the Journal of Patient Safety puts the number of deaths at more than 400,000.
Researchers generally agree that only about 2% of malpractice victims actually take action against doctors or hospitals.
Source: Diederich Healthcare’s
Source: New England Journal of Medicine
“2014 Medical Malpractice Payout Analysis”
Awards to malpractice victims have declined over the past decade. In 2003 nearly $5 billion was awarded in malpractice actions. That number steadily declined until 2012 when $3.6 billion was paid. In 2013 the total climbed slightly to $3.7 billion.
A Department of Justice (DOJ) study found that the average injured patient waits 16.5 months before filing a medical malpractice lawsuit. Once the suit is filed, it takes an average of 27.5 months to reach resolution of a medical malpractice case.
According to a 2009 Congressional Budget Office Report, the total direct costs to healthcare providers resulting from medical malpractice liability (including malpractice insurance, settlements, awards, and administrative costs not covered by insurance) was $35 billion in 2009 – about 2% of total U.S. healthcare expenditures.
In 1999, the Institute of Medicine published a report titled “To Err Is Human.” This report focused on American hospitals and the number of preventable medical errors per year. Since the report was published, the number of inaccurate diagnoses, adverse drug effects, surgical mistakes, and unnecessary infections has grown. The increase can partially be attributed to the surge of American citizens seeking medical assistance, combined with the lack of sleep experienced by many hospital professionals.
- A sum of 225,000 Americans die each year from all forms of medical malpractice put together.
- 98,000 people die in hospitals each year from preventable medical errors.
- 80,000 hospitalized patients develop central-line infections from errors during insertion of a catheter.
- 30,000 people die each year from central-line infections.
- 70% of adverse events that take place in American hospitals are preventable.
- Only 2% of all medical malpractice victims seek legal action.