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.
1 Frequency and cost of medical errors
2 The medical malpractice claim
2.1 The parties
2.2 Elements of the case
2.3 The trial
2.4 Expert testimony
3 Statute of limitations
4 Nature of malpractice and compensations
5 Arguments about the medical liability system
6 The case for medical liability reform
7 Limits on recovery
8 See also
Frequency and cost of medical errors
Back in 1984, extrapolated statistics from relatively few records in only several states of the United States estimated that between 44,000-98,000 people annually
die in hospitals because of medical errors. Much work has been done since then, including work by the author of that study who moved on from those low
estimates back in the 1990s. For example, the Centers for Disease Control and Prevention currently says that 75,000 patients die annually, in hospitals alone,
from infections alone - just one cause of harm in just one kind of care setting. From all causes there have been numerous other studies, including "A New,
Evidence-based Estimate of Patient Harms Associated with Hospital Care" by John T. James, PhD that estimates 400,000 unnecessary deaths annually in
hospitals alone. Less than one quarter of care takes place in hospitals. Across all care settings the numbers are higher.
Another study notes that about 1.14 million patient-safety incidents occurred among the 37 million hospitalizations in the Medicare population over the years 20002002. Hospital costs associated with such medical errors were estimated at $324 million in October 2008 alone.
Between 15,000 and 19,000 malpractice suits are brought against doctors each year.
The medical malpractice claim
The plaintiff is/ 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
Elements of the case
A plaintiff must establish all five elements of the tort of negligence 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: the provider failed to conform to the relevant standard care.
The breach caused an injury: The breach of duty was a direct cause and the proximate cause of the injury.
Deviation from the accepted standard: It must be shown that the practitioner was acting in a manner which was contrary to the generally accepted
Damage: Without damage (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was
standard in his/her profession.
negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease.
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
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 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 ), General Electric Co. v. Joiner (522 U.S. 136 ),
and Kumho Tire Co. v. Carmichael (526 U.S. 137 ). Before the trial, a Daubert hearing 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. 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.
Many states also require that a certificate of merit before a malpractice lawsuit be filed which requires a report from a medical physician that the physician accused
of negligence breached the standard of care and caused injury to the patient.
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.
Statute of limitations
Main article: 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. Therefore each state has different time limits set.
Nature of malpractice and compensations
Further information: Medical error
A 2011 study in the New England Journal of Medicine reported that 75% of physicians in "low-risk" specialties and virtually 100% of physicians in "high-risk"
specialties could expect to face a malpractice claim during their careers. However, the authors also noted that the vast majority of malpractice claims did not lead
to any indemnity payments.
Most (73%) settled malpractice claims involve medical error. A 2006 study 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.
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.
Arguments about the medical liability system
Main article: Tort reform
Doctors' groups, patients, and insurance companies have criticized medical malpractice litigation as expensive, adversarial, unpredictable, and inefficient. They
claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12 percent annually since 1975. More recent research
from the same source has found that tort costs as a percentage of GDP dropped between 2001 and 2009, and are now at their lowest level since 1984. 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.
However, more recent research from the U.S. Department of Justice has found that median medical malpractice awards in states range from $109,000 to
These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems. 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. 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." More recent data has indicated that medical malpractice rates are generally no longer rising. In 2011, data pooled from the industry by the
publication Medical Liability Monitor indicated that medical malpractice insurance rates had declined for four straight years. The decrease was seen in both states
that had enacted tort reform and in states that had not, leading actuaries familiar with the data to suggest that patient safety and risk management campaigns had
had a more significant effect.
The major tort reform proposals have been:
Special medical malpractice courts
Limits on noneconomic damages
Reduction in the statute of limitations of action
The majority of the American public supports reforms to the malpractice system. However, surveys show that the majority of the American public also vastly
underestimate the extent of medical errors. 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.
At the same time, studies of these claims have found that there is no problem of increasing malpractice verdicts and insurance costs driving doctors out of
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.
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." According to the Texas Insurance Department,
physicians in Texas have seen a 25% overall drop in medical liability insurance rates since 2003.
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.
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:
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.
Other estimates conclude that the cost of the medical liability system, including defensive medicine, is up to 3%. 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. It should also be noted that litigation driven defensive medicine results by definition - in doctors ordering medical care that they believe will hurt a patient because they want insulation from a potential malpractice lawsuit for which the
vast majority of doctors have medical insurance. Some argue that these studies are written by those with a bias towards tort reform, are simply inaccurate, and
underestimate the extent to which doctors put their patients' interests above their own potential fears of litigation.
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."
MICRA was passed in the midst of a liability insurance 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.
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. Consumer advocates contend that MICRA had little effect, and that doctors did not see any rate relief until insurance reform was passed with
Proposition 103, which ordered a rate rollback and enacted strict regulation on insurance companies.
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.
Limits on recovery
Many jurisdictions have reformed medical malpractice recovery in an effort to decrease hospital and physician costs. In California, for example, recovery for noneconomic damages are limited to $250,000. Non-economic damages are costs that are not actually incurred, such as pain and suffering or mental anguish. States
have enacted such laws in order to keep health care costs low, in addition to helping curb medical malpractice litigation.
Texas law creates the most difficult "hurdles" in the United States for a plaintiff to succeed in recovering damages for any medical malpractice, even for
such objective cases such as an emergency room exposure to theEbola virus disease.
The status of at least a majority of doctors in India has been reduced to mere traders: traders of pain. The blatant insensitivity in the dealings between doctors and
their patients resembles medieval markets where there is no place for humanity or compassion. The medical profession is seen just as another money minting job,
which does not have the basic decency to take into consideration the pain and suffering of a fellow human being who has put all his hopes on the doctor. The
reasons for the falling standards of doctors: both ethically and professionally are, the lust for money, partisan government policies, which favors the rich and the
powerful, and an appalling lack of discipline and humanity in the dealings of the doctors.
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
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
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 patient-safety 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
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
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 N
The breach by a member of a profession of either a standard of care or a standard of conduct.
Malpractice refers to Negligence or misconduct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet a standard of care or stand
ardof conduct that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of error.
After the 1970s the number of malpractice suits filed against professionals greatly increased. Most malpractice suits involved doctors, especially surgeons and other specialists
whoperformed medical procedures with a high degree of risk to their patients. Large damage awards against doctors resulted in higher malpractice insurance costs. Similarly, th
eincrease of malpractice awards against lawyers led to higher insurance premiums and caused some insurance companies to stop writing malpractice policies altogether.
The typical malpractice suit will allege the TORT of negligence by the professional. Negligence is conduct that falls below the legally established standard for the protection of oth
ersagainst unreasonable risk of harm. Under negligence law a person must violate a reasonable standard of care. Typically this has meant the customary or usual practice ofme
mbers of the profession. For example, if a surgeon leaves a sponge or surgical tool inside a patient, the surgeon's carelessness violates a basic standard of care. Likewise, if an
attorney fails to file a lawsuit for a client within the time limits required by law, the attorney may be charged with negligence.
Among physicians, malpractice is any bad, unskilled, or negligent treatment that injures the patient. The standard of care formerly was considered to be the customary practice
of aparticular area or locality. Most states have modified the "locality rule" into an evaluation of the standard of practice in the same or similar locality, combined with an examina
tion ofthe state of development of medical science at the time of the incident. This modification has taken place as medicine has become increasingly uniform and national in sc
ope. Amajority of states define the standard of conduct as that degree of skill and learning ordinarily possessed and used by other members of the profession. A doctor who has
met thestandard, as established by Expert
Testimony at trial, cannot generally be found negligent. Some states have passed statutes that establish the standard of the profession as thetest of whether particular treatment
Specialists within the medical field are generally held to standards of care that are higher than those for general practitioners. In addition, a specialist or anyone undertaking top
erform procedures ordinarily done by a specialist will be held to the level of performance applied to that specialty, although the person may not actually be a certified specialist in
A small number of states apply the "respectable minority rule" in evaluating doctors' conduct. This rule exempts a physician from liability where he chooses to follow a technique
used only by a small number of respected practitioners. Courts, however, frequently have difficulty in determining what is a respectable minority of physicians or acceptable sup
portfor a particular technique.
Some states use the "error in judgment rule." This principle holds that a medical professional who otherwise subscribes to applicable professional standards should not be found
tohave committed malpractice merely because she committed an error in judgment in choosing among different therapeutic approaches or in diagnosing a condition.
Medical malpractice cases arise when a patient is harmed by a doctor or nurse (or other medical professional) who fails to provide proper health care treatment. Fortunately, doctors, nurses,
and hospitals make mistakes in a small number of cases. But within that small minority of cases, certain types of errors crop up more often than others. Read on to learn about the doctor and
hospital mistakes that make up the bulk of medical malpractice lawsuits.
A word of caution on the types of medical errors described below: Keep in mind that just because a doctor made a mistake or a patient was unhappy with a course of treatment or its outcome,
that doesn't mean malpractice necessarily occurred. In order to meet the legal definition of medical malpractice, the doctor or medical provider must have been negligent in some way -meaning the doctor was not reasonably skillful or competent, and that incompetence harmed the patient. (To learn more about what does and does not constitute medical malpractice, see Nolo's
article Medical Malpractice Basics.)
Misdiagnosis or Delayed Diagnosis
Misdiagnosis and delayed diagnosis account for a large percentage of medical malpractice complaints. When a doctor misdiagnoses a condition (or fails to diagnose a serious disease for some
time), the patient might miss treatment opportunities that could have prevented serious harm or even death.
The key in proving a medical malpractice claim based on misdiagnosis or delayed diagnosis is to compare what the treating doctor did (or didn't do) to how other competent doctors within the
same speciality would have handled the case. If a reasonably skillful and competent doctor under the same circumstances would not have made the diagnostic error, then the treating doctor
may be liable for malpractice. (To learn more about proving a misdiagnosis claim, see Nolo's article Medical Malpractice: Misdiagnosis and Delayed Diagnosis.)
A number of fetal injuries can be caused by medical malpractice, including brain injuries (such as cerebral palsy and seizure disorders), fractured bones, and erb's and klumpke's palsy
(damage to nerves that control the arms and hands). However, keep in mind that these injuries are more often caused by something other than medical malpractice.
A physician or obstetrician's negligence can happen during childbirth or long before.
Negligent prenatal care. If negligent medical treatment is provided during the pregnancy, it could harm the fetus or the mother (or both). Some examples of negligent prenatal care include the
physician or obstetrician's:
failure to diagnose a medical condition of the mother, such as preeclampsia, Rh incompatibility, hypoglycemia, anemia, or gestational diabetes
failure to identify birth defects
failure to identify ectopic pregnancies, or
failure to diagnose a disease that could be contagious to the mother's fetus (such as genital herpes or neonatal lupus).
Negligence during childbirth. A doctor's negligence during childbirth could cause injury to the baby and harm to the mother. Common medical errors during childbirth include the physician or
failure to anticipate birth complications due to the baby's large size or because the umbilical cord got tangled
failure to respond to signs of fetal distress
failure to order a cesarean section when one was appropriate, or
incompetent use of forceps or a vacuum extractor.
(To learn more about birth injuries, see Nolo's article Birth-Related Medical Malpractice.)
According to a 2006 study, medication errors harm approximately 1.5 million people in the United States every year. Medication errors can occur many ways -- from the initial prescription to the
administration of the drug. For example, a patient might be harmed if the doctor prescribes the wrong medication. Or the patient might be harmed by medication that the doctor prescribes to
treat a misdiagnosed condition. In a hospital setting, the right drug might be given to the wrong patient.
However, by far the most common medication errors involve dosage -- the patient gets too much or too little of a drug. This can happen several ways:
The doctor writes an incorrect dosage on the prescription.
The prescription is correct, but the nurse administers the incorrect amount.
Equipment that administers the drug malfunctions, causing a large dose of medication to be administered over a short period of time. For example, this can happen when a defibrillator has a dead battery or an
intravenous pump has a dislodged valve.
Anesthesia mistakes are usually more dangerous than surgery mistakes. Even a small error by the anesthesiologist can result in permanent injury, brain damage, or even death. An
anesthesiologist can commit medical malpractice even before anesthesia is administered by:
failing to investigate the patient's medical history for possible complications, or
failing to inform the patient of the risks involved if preoperative instructions aren't followed (like not eating for a certain period of time prior to surgery).
Anesthesia errors that can occur during surgery include:
giving too much anesthesia to the patient
failing to monitor the patient's vital signs
improperly intubating patients (putting a tube in the trachea to assist with breathing), or
using defective equipment.
Some medical malpractice claims arise from mistakes made in the operating room. A surgeon might be negligent during the operation itself (puncturing internal organs, operating on the wrong
body part, or leaving surgical instruments in the body) or the nursing staff might be negligent in administering post-op care (which could result in complications like serious infection).
Common Types of Medical Malpractice
A wide variety of situations can lead to a medical malpractice claim -- from a doctor leaving a sponge in a patient's stomach during an operation to failing to tell a patient that a prescribed drug
might cause heart failure. Most medical malpractice claims fall into one of these categories:
Failure to diagnose. If a competent doctor would have discovered the patient's illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually
achieved, then the patient may have a viable medical malpractice claim.
Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. In a similar vein, it may also be
malpractice if the doctor selects the appropriate treatment but administers it incompetently.
Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment -- this is known as the duty of informed consent. If a
patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the
procedure (in a way that the doctor should have warned could happen). (To learn more, read Nolo's article Medical Malpractice: Informed Consent.)
Special Requirements in Medical Malpractice Cases
Many states have special rules and procedures for medical malpractice claims. It is important to know about these rules and f ollow them carefully.
Medical malpractice cases must be brought soon after the injury. In most states, you must bring a medical malpractice claim fairly quickly -- often between six months and two years,
depending on the state. (The time period in which you must bring the lawsuit is called the "statute of limitations.") If you don't file the lawsuit within the specified period of time, the court will
dismiss the case regardless of the facts.
When the time period starts ticking also depends on the state. In some states, the clock starts when the negligent act occurred; in others, it starts when the patient should have discovered the
Special medical malpractice review panels. Many states require the patient to first submit the claim to a malpractice review panel. This panel of experts will hear arguments, review evidence
and expert testimony, and then decide whether malpractice has occurred. The panel decision does not replace an actual medical malpractice lawsuit, and the panel cannot award damages, but
it's a hoop the patient must jump through before getting to court. The findings of the review panel can be presented in court, and courts often rely on a review panel's finding of no medical
malpractice to throw out a case before it goes to trial.
Special notice requirements. Some states require that the patient give the doctor notice of the malpractice claim, in the form of a basic description, before filing anything.
Expert testimony is required. Expert opinions are often a crucial feature of the patient's case. A qualified expert is usually required at trial. (And often, expert testimony or an expert affidavit is
required at the malpractice review panel proceedings prior to commencing trial.) State rules vary as to what makes somebody qualified to provide expert medical testimony, but generally it is
someone with experience in the particular field at issue. In a very limited number of circumstances, expert testimony is not required, such as when a surgical towel is left inside the patient after
Limits on damage awards. Many states limit or "cap" the amount of money that can be awarded to a medical malpractice patient. (Get the details: State-by-State Medical Malpractice Damage