Medical malpractice

Medical malpractice

Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals may obtain professional liability insurances 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 party

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, which was found in the case of Dany Decell, CEO, 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.[1]

  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 proximate cause of the injury.
  4. 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 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

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. 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[2] 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.[3] 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.[4]

Many states also require that 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.


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 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.[5]

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.

Nature of malpractice and compensations

A 2011 study published in the New England Journal of Medicine, “Malpractice Risk According to Physician Specialty,” utilized 14 years of malpractice data obtained from a large medical liability insurer covering more than 40,000 doctors across 25 specialties. The study found that: 1) Annually, between 1991 and 2005, 7.4% of all physicians had a malpractice claim, with 1.6% having a claim that led to an indemnity payment; 2) By the age of 45, up to 36% of physicians in low-risk specialties were projected to have faced their first claim. For high-risk specialties this figure was as high as 88%. By age 65, the proportion for low-risk specialties is estimated to be as high as 75% and for high-risk specialties is fully 99%; 3) Between 1991 and 2003, the proportion of claims against physicians in low-risk specialties decreased from 8.3% to 5.8%. Additionally, claims against practitioners in high-risk specialties were at their highest from 1996 to 2000; 4) The average cost of an indemnity payout was $274,887, with some specialties such as pediatrics averaging as high as $520,924; and, 5) Despite the high cost of some payouts and the pervasive concern of physicians, the researchers found that only 1% to 5% of claims resulted in payments. The study's authors conclude, “High rates of malpractice claims that do not lead to indemnity payments, as well as a high cumulative career malpractice risk in both high and low-risk specialties, may help to explain perceived malpractice risk among U.S. physicians.”[6]

Most (73%) settled malpractice claims involve medical error. A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error "are not uncommon, but most [72%] are denied compensation. The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant." Physicians examined the records of 1452 closed malpractice claims. Ninety-seven percent were associated with injury; of them, 73% got compensation. Three percent of the claims were not associated with injuries; of them, 16% got compensation. 63% were associated with errors; of them, 73% got compensation (average $521,560). Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205). Claims not associated with errors accounted for 13 to 16% percent of the total costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs.[7][8]

A 2004 study of medical malpractice claims in the United States examining primary care malpractice found that though incidence 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.[9]

Arguments about the medical liability system

Doctors' groups, patients, and insurance companies have criticized medical malpractice litigation as expensive, adversarial, unpredictable, and inefficient.[10] They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12 percent annually since 1975.[11] Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000.

These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems.[12] Not everyone agrees, though, that medical malpractice lawsuits are solely causing these rate increases. A 2003 report from the General Accounting Office found multiple reasons for these rate increases, with medical malpractice lawsuits being the primary driver.[13] Despite noting multiple reasons for rate increases, the report goes on to state that the "GAO found that losses on medical malpractice claims-which make up the largest part of insurers’ costs-appear to be the primary driver of rate increases in the long run."

The major tort reform proposals have been:

  1. Special medical malpractice courts
  2. Limits on noneconomic damages
  3. Reduction in the statute of limitations of action

The majority of the American public supports reforms to the malpractice system. However, trial lawyers who profit from malpractice suits oppose reform.[14] 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. [15]

At the same time, studies of these claims have found[16][17][18][19] that there is no problem of increasing malpractice verdicts and insurance costs driving doctors out of business.

The case for medical liability reform

Proponents of medical liability reform argue that medical malpractice lawsuits restrict patient access to health care by driving physicians out of business or encouraging them to limit high-risk procedures. One in 12 obstetricians who have reported changes in their practice as a result of the risk or fear of professional liability claims have stopped delivering babies.[20]

Medical Liability reform took place in Texas in 2003. Many physicians said they moved to Texas as a result. According to the Texas Medical Board, "Medical license applications jumped 58% from 2,561 in 2003 to 4,041, an unprecedented number, according to the Texas Medical Board. The state saw a 7.2% growth in the number of ob-gyns between May 2003 and May 2008. Similar increases were observed in other specialties." (Texas population grew by a substantially larger percentage in the same period.) According to the Texas Insurance Department, physicians in Texas have seen a 25% overall drop in medical liability insurance rates since 2003.[21] One provision of the Texas reform makes emergency room doctors immune for negligence unless it was "willful and wanton," which plaintiff's lawyers argue is almost impossible to meet. In the case of Jennifer McCreedy, who was seen by a physician's assistant in the emergency room, the supervising doctor testified he should have seen McCreedy himself, called an orthopedic surgeon, and read the charts more carefully, but the jury found that he didn't meet the willful and wanton standard. Malpractice claims declined 60% from 2003 to 2007, and payments per claim fell by one-third.[22]

Physician advocacy groups say 60% of liability claims against doctors are dropped, withdrawn, or dismissed without payment. However even those cases have a price, costing an average of more than $22,000 to defend in 2008 ($18,000 in 2007). Physicians are found not negligent in over 90% of cases that go to trial - yet more than $110,000 (2008 estimate, $100,000 in 2007) per case is spent defending those claims.[20]

Malpractice has both direct and indirect costs, including "defensive medicine." According to the American Medical Association, defensive medicine increases health systems costs by between $84 and $151 billion each year. Studies place the direct and indirect costs of malpractice between 5% and 10% of total U.S. medical costs, as described below:[23]

"About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans. The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense."

In one study of defensive medicine, Daniel P. Kessler and Mark McClellan found that, in treatment of heart disease, malpractice reforms reduced costs by 5% to 9% without affecting deaths or complications.[24]

Other estimates conclude that the cost of the medical liability system, including defensive medicine, is up to 3%.[25][26] Uwe E. Reinhard wrote that many analyses of the costs of the malpractice system don't consider the benefits, such as compensating injured patients and motivating improvements. Proposed reforms would only reduce national health spending by 0.5%, according to the Congressional Budget Office.[27]

Many supporters of medical liability reform believe that laws modeled after California's Medical Injury Compensation Reform Act (MICRA) should be passed at the federal level. "California is the perfect model for federal medical malpractice reform", said Lisa Maas, executive director of Californians Allied for Patient Protection. "MICRA is considered the gold standard in terms of what other states look to in tort reform in the medical liability area." [28]

MICRA was passed in the midst of a medical liability crisis in 1975, as premiums soared and some California physicians were unable to find liability coverage. The law limits non-economic damages in medical malpractice cases to $250,000. It also imposes a sliding scale on plaintiffs' attorney fees that prohibits them from charging more than 40% on any recovery.[29]

MICRA advocates say the law has stabilized liability costs and preserved access to thousands of physicians, nurses, hospitals and other healthcare providers. In particular, MICRA is said to protect specialty and high-risk services, including women's services, community clinics and rural providers that can least afford skyrocketing insurance costs. In addition, supporters say MICRA has saved healthcare consumers tens of billions of dollars by protecting against runaway damage awards.[30]

The American Medical Association is leading a campaign to pass medical liability reform and protect patient access to health care. AMA Leaders are working with state medical associations to enact and defend strong tort reform laws. They continue to advocate for federal reforms based on solutions such as the MICRA laws.

See also


  1. ^ "The Four Elements of Medical Malpractice". Yale New Haven Medical Center: Issues in Risk Management. 1997. 
  2. ^ Reeg and Bebout (1993). "What's It All About, Daubert?". Journal of the Missouri Bar. 
  3. ^ Preparing Plaintiff's Expert in the Post Kuhmo Era, Anthony H. Gair, New York State Bar Association, 1999
  4. ^ Tancredi LR, Giannini AJ (December 1994). "The admissibility of scientific evidence in psychiatric malpractice: junk science and the Daubert case". Journal of clinical forensic medicine 1 (3): 145–148. doi:10.1016/1353-1131(94)90082-5. PMID 16371283. 
  5. ^ AJ Giannini, MC Giannini, AE Slaby. Suicide--The medical-legal implications. Psychiatric Forum. 14(2):6-10, 1989.
  6. ^ ""Malpractice Risk According to Physician Specialty"". Journalist's 
  7. ^ Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine,May 11, 2006.
  8. ^ Medical Malpractice Study, Disproving Frivolous Myth , Jeffrey B. Bloom, Gair, Gair, Conason, Steigman & Mackauf, The National Law Journal, July 3, 2006
  9. ^ Phillips RL, Bartholomew LA, Dovey SM, Fryer GE, Miyoshi TJ, Green LA (April 2004). "Learning from malpractice claims about negligent, adverse events in primary care in the United States". Qual Saf Health Care 13 (2): 121–126. doi:10.1136/qshc.2003.008029. PMC 1743812. PMID 15069219. ; lay-summary
  10. ^ First hand experience of an Orthopaedic surgeon who suffered a medical malpractice litigation Overcoming Lawsuits
  11. ^ [1] Towers Perrin, Tillinghast, U.S. Tort Costs and Cross-Border Perspectives: 2005 Update, (New York, NY: Towers Perrin, March 2006).
  12. ^ Medical Malpractice Insurance Roundtable: Doctors Prescribe Remedies for Crisis. The Business Journal, Jun 11, 2004, accessed August 3, 2006.
  13. ^ GAO-03-702 Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates General Accounting Office, June 2003, accessed August 3, 2006.
  14. ^
  15. ^ Cristina Corduneanu-Huci, Alexander Hamilton, and Issel Masses-Ferrer, The political economy of healthcare litigation: model and empirical application to Uruguay. World Bank Policy Research Working Papers
  16. ^ Tom Baker, The Medical Malpractice Myth. University of Chicago Press, 2005. 222 pages. Page 3, "First, we know from the California study, as confirmed by more recent, better publicized studies, that the real problem is too much medical malpractice, not too much litigation."
  17. ^ William M. Sage, M.D., Margaret Thompson, Cynthia Gorman, Melissa King. [ The Jury's Still Out: A Critical Look at Malpractice Reform], Center for American Progress, June 12, 2008. From the study, "There is no nationwide crisis [...] Malpractice is wrongly blamed for rising health care costs in the United States...Experts have found little correlation between malpractice claim increases and malpractice premium increases. "
  18. ^ Faulty Data and False Conclusions: The Myth of Skyrocketing Medical Malpractice Verdicts, Lewis L. Laska, J.D., Ph.D. and Katherine Forrest, M.D., M.P.H. Commonweal Institute, October 6, 2004. From the report, "The premise that medical malpractice awards have been rising dramatically in the United States in recent years, driving up the cost of healthcare and forcing physicians out of practice, is not supported by relevant evidence."
  19. ^ Most Mass. doctors face lower cost for malpractice coverage. From the article describing the study, "Despite assertions that high malpractice rates are driving them out of the state, Massachusetts doctors are paying less than they were in 1990, after adjusting for inflation, according to a Suffolk University Law School study."
  20. ^ a b "The Case for Medical Liability Reform", American Medical Association
  21. ^ Texas liability reforms spur plunge in premiums and lawsuits; Doctors attribute reduced medical liability insurance rates and an influx of specialists to the caps enacted five years ago. A legal challenge threatens to undo the reforms. By Amy Lynn Sorrel, amednews staff. Sept. 8, 2008.
  22. ^ Lawyers Wary of Taking on Patients By EMILY RAMSHAW, New York Times, December 18, 2010
  23. ^ Bloomberg-Malpractice Lawsuits are Red Herring in Obama Plan
  24. ^ Do Doctors Practice Defensive Medicine? Daniel P. Kessler and Mark McClellan. Quarterly Journal of Economics, 1996, v111(2,May), 353-390.
  25. ^ Medical Malpractice System Breeds More Waste By David Leonhardt, New York Times, September 22, 2009
  26. ^ [Health Care Wastefulness Is Detailed in Studies], By KEVIN SACK, New York Times, September 7, 2010
  27. ^ Changing the Malpractice System, By UWE E. REINHARDT, New York Times, October 1, 2010
  28. ^ "California's landmark med-mal law called a national model", Legal NewsLine
  29. ^ "RAND study finds California medical malpractice award caps have cut payments by 30 percent to those who win lawsuits", RAND Corporation
  30. ^ "Preserving Healthcare Access and Affordability", Californians Allied for Patient Protection

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