Every 43 minutes – day and night all year long – money is paid out in settlements or jury awards for deaths or injuries in medical malpractice incidents.
The awards totaled about $13 billion in 2013. That’s stunning on its face.
Even more stunning: Only about 2% of medical malpractice victims even seek compensation.
Medical malpractice is acknowledged as a major cause of death and serious injury in the U.S. Yet recent research points to the possibility that the number of victims may far exceed any prior estimate and medical errors may, in fact, be the third largest cause of death in the nation.
The topic is complex and opinions about its severity range across a broad political and philosophical spectrum.
Legal Malpractice Definition; What is Medical Malpractice?
Medical malpractice happens when a medical provider fails to observe the guidelines of care, resulting in a patient’s injury or death. This can happen as a result of either a negligent act or an omission or lack of action by the physician.
This can mean the health care professional either failed to properly diagnose the patient or made a mistake during treatment. Adverse medical events can be traced back to sub-standard patient care, forms of medical negligence, or patient abandonment. These cases only become medical malpractice when the mistakes cause actual damage.
Source: Diederich Healthcare’s “2013 Medical Malpractice Payout Analysis”
Under the law, the following conditions must be met to prove medical malpractice:
The doctor violated the standard of care: There are certain medical standards that have become recognized as acceptable medical treatment in the profession. These are the standards of care. Patients should expect these standards of care will be followed and if it can be determined that they have not been followed, the negligence is established.
Injuries are caused by that negligence: In the next step a patient must show that his/her physicianviolated that standard of care and that a resulting injury would not have happened in the absence of the physician’s negligence. To put it another way, the patient must show that the negligence caused the injury.
Damages resulted from the injury – In addition to showing negligence and an injury, patients must also demonstrate a real loss as a result of the injury. This may be lost wages, severe pain and suffering or medical bills. Some patients are loathe to file suits where damages might be considered small since the cost of mounting a medical malpractice suit can be substantial and could outweigh an award.
While medical negligence and malpractice are similar, they are not the same. Medical malpractice is an active disregard for the necessary steps to providing accurate and ethical health assistance. Medical negligence is a breach of duty or a failure to comply with certain standards. Negligence is often associated with inattention on the health care provider’s part and can result from poor doctor-patient communication.
Source: Diederich Healthcare’s “2014 Medical Malpractice Payout Analysis”
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.
Abandonment: When a physician prematurely terminates a patient’s care without proper notice or patient consent, that physician is guilty of abandonment. Patients who have been abandoned have experienced a termination in the patient-health care provider relationship despite the patient’s continued need for such care.
Healthcare providers are bound by a code of ethics that states that a professional who begins treating a patient’s illness willingly should complete the treatment to the best of his or her ability.
That code, however, does not extend to patients who refuse treatment from a doctor. For instance, if a patient refuses to take a medication even though his doctor believes it is required to treat his condition. If this patient refuses his treatment, then the doctor can let him/her go.
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.
Amitabh Chandra, et al. “Malpractice Risk According To Physician Specialty.” The New England Journal Of Medicine 365.7 (2011): 629-636. MEDLINE with Full Text. Web. 15 May 2012.
Bryan, Patrick B., and Jeffrey O’Connell. “More hippocrates, less hypocrisy: ‘early offers’ as a means of implementing the Institute of Medicine’s recommendations on malpractice law.” Journal of Law and Health Spring 2000: 23+. Academic OneFile. Web. 18 May 2012.
Kalb, Claudia. “Do No Harm.” Newsweek 4 Oct. 2010: 48. Academic OneFile. Web. 15 May 2012.
Latner, Ann W. “A clinician breaks the cardinal rule: a serious accident during a patient’s discharge leads to potentially life – threatening injuries and a lawsuit.” Clinical Advisor Mar. 2012: 72+. Academic OneFile. Web. 15 May 2012.
Additional Frequently Asked Questions
- What Damages Can I Recover in a Medical Malpractice Case?
- How Do I Know If I’m Within the Statute of Limitations for Medical Malpractice?
- How Do I Obtain My Medical Records?
- Do Statute of Limitations Apply in Medical Malpractice Lawsuits If Symptoms Were Present Immediately but Got Worse Recently?
- Can I Sue a Doctor for Medical Malpractice That Prescribed the Wrong Medication?