Medical Malpractice

Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. More than 4000 years ago, the Babylonian king Hammurabi promulgated a law that provided that a physician whose patient lost an eye as a consequence of surgery should himself lose his hand. Ancient Egyptians and the Roman empire had statutes providing for banishment or death as the physician's penalty for malpractice. Civil War accounts reported surgeons refusing to perform certain procedures for fear of litigation. In the United States and other countries, a specific medical malpractice law has developed. In English law, the issue of liability is a subset of professional negligence where, under the Bolam Test, a doctor will be liable unless shown to have acted in accordance with a reasonable body of medical opinion. In Australia, this test has been replaced but the principles are comparable. In recent years doctors have blamed these types of lawsuits for large rate increases in medical malpractice insurance, resulting in calls from some groups for tort reform. The medical malpractice claim The parties The plaintiff is the patient, a legally designated party acting on behalf of the patient, or by the executor or administrator of a deceased patient's estate (in the case of a wrongful death suit). 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. Relying on vicarious liability, claims may also be brought against hospitals, clinics, or medical corporations for the mistakes of their employees. Elements of the case A plaintiff must establish all four of the following elements, for a successful medical malpractice claim. A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient. A duty was breached and failed and the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitor or 'the thing speaks for itself'). An exceptions to this rule requiring expert testimony is included the concept of abandonment, an allegation where a physician stopped treating an established patiewnt without providing a substitute equally skilled and trained or without providing adequate notice for the patient to find alternate care without risk The breach caused an injury -- The breach of duty was a proximate cause of the injury. 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. The trial Like all other tort cases, the plaintiff (or the plaintiff's attorney) files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties (or their attorneys) are required to 'share information' through a process known as discovery. Such information includes interrogatories, requests for documents, and depositions. If both parties agree, the case may be settled early 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 (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible. The factfinder will render a verdict for the prevailing party, and asseses the compensatory and punitive 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. A plaintiff who is dissatisfied by a small judgment may move for additur. A defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment. Expert testimony That medical malpractice must be judged by the testimony of medical practitioners is a rule dating back to the 16th century. 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 reliabilty. 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 hearingwill 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. Statistics on malpractice and preventable medical error Medical malpractice claims can help identify areas where primary health care in the United States needs improvement, according to the American Academy of Family Physicians. The Academy refers to a study entitled "Learning from Malpractice Claims about Negligent, Adverse Events in Primary Care in the United States", in suggesting that the medical community can learn from tort claims. In that study, researchers looked at primary care malpractice claims settled between 1985 and 2000 in the United States. The study focused on a subset of 5,921 claims that were clear errors. The researchers found: 68 percent of the errors were in outpatient settings and resulted in more than 1,200 deaths. Negligence was more likely to have severe outcomes when they occurred in hospitals, but the total number of high severity outcomes and death was larger in the outpatient setting. Of the 10 most prevalent medical conditions with error-related claims, no single condition accounted for more than five percent of all negligent claims. Diagnostic error accounted for more than one-third of the claims. A recent study by Heathgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic. A 2006 follow-up to the 1999 Institute of Medicine of the National Academies study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million -- and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs. Criticism of medical malpractice resolution The process for adjucating medical malpractice lawsuits in the United States has been criticised for providing an expensive, adversarial, unpredictable, and inefficient settlement system. Both insurance companies and Physicians have argued that excessive verdicts in medical malpractice lawsuits are in part responsible for the increasing medical malpractice insurance rates. These groups point to examples where rate increases are causing doctors to go out of business or have moved to states where more favorable tort systems exist. A 2003 report from the General Accounting Office identified multiple reasons for these rate increases, one of which one was indeed costs associated with malpractice lawsuits. The average increase in malpractice premiums in that same year ranged from 15 to 30 percent in most states, depending on the location and medical specialty. These drastic increases in malpractice insurance rates have resulted in doctors striking in West Virginia, the temporary closings of hospital services (e.g., the trauma care center at the University of Nevada Medical Center), the reduction or elimination of physicians performing high-risk services, and the early retirement of some physicians to pursue other fields. An estimated 60% of malpractice lawsuit expenses are consumed by administrative, or transaction, costs (eg, lawyer fees, expert witness charges, court costs), as compared with 25% to 30% for systems such as workers' compensation. 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. That number has held steady since then, dropping briefly in the wake of the Sept. 11 terrorist attacks. A number of groups are actively involved in the issue of tort reform with regards to medical malpractice. For example, Common Good has proposed creating specialized medical courts (similar to existing administrative tax or workmen's comp court proceedings) where medically-trained judges would evaluate cases and subsequently render precedent-setting decisions. Proponents believe that giving up jury trials and scheduling noneconomic damages such as pain and suffering would lead to more people being compensated, and to their receiving their money sooner. While this proposal has been criticised by some as depriving Americans of their right to a trial by jury, a number of groups have supported this proposal, including he AMA, and the American College of Surgeons, the National Law Journal, Forbes magazine, and the USA Today and Wall Street Journal editorial pages. Other tort reform proposals, some of which have been enacted in various states, include placing limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates.