The Ins and Outs of Medical Malpractice in the United States in 2020

Medical malpractice occurs when a patient is injured due to negligence or an act of omission by a healthcare provider. Malpractice can include care below the standard of practice, misdiagnosis, errors in treatment, errors in aftercare, or inadequate health management. 

Professional liability insurance may help medical professionals offset the lawsuit costs in the case of medical malpractice. In the US, there are around 17,000 malpractice cases filed per year.

Who is involved in the Malpractice Lawsuit?

The parties usually involved in a malpractice lawsuit are the plaintiff and the defendant. 

The plaintiff is the patient who sustained the injury or a legally designated party who acts on behalf of the patient. The plaintiff may also be an executor or administrator of the patient’s will if the case is a wrongful death suit. 

The defendant is a professional health care provider who could be any medical health care provider, not just a physician. The defendant may also be a corporation such as a hospital or a clinic. 

From Negligence to Malpractice

Common instances of Medical negligence that may lead to a malpractice suit are failure to diagnose, negligent treatment, and failure to warn. Failure to diagnose occurs when the professional fails to diagnose or incorrectly diagnoses the patient’s existing medical condition. Negligent treatment occurs when the health care provider makes a mistake that another reasonable professional in the same situation would not make. Failure to warn occurs when a medical professional treats the patient without informing the patient of risks and fails to obtain the patient’s informed consent.

Plaintiff’s Role in Medical Malpractice

It is the plaintiff’s role to establish elements of negligence for the medical malpractice claim to be successful. The elements are as follows:

  1. A duty was owed: whenever a clinic, hospital, or health care provider accepts a patient, the patient is now owed care by a professional.
  2. A duty was breached: this occurs when the health care provider fails to meet the standard of care 
  3. The breach caused injury: the injury suffered by the patient was directly caused by the professional’s breach of duty
  4. Deviation of the standard: the plaintiff must prove that the provider acted in a way that another reasonable professional in the same situation would not. 
  5. Damage: damage is the basis for the claim, whether the provider was negligent or not. However, the damage is also possible without negligence.

However, in the case of suicide, professionals may be held to a different standard than in most medical malpractice cases. This is especially true for psychiatrists. Generally, health care professionals are not responsible for damages occurring after the patient’s suicide, unless it is shown that the professional’s negligence resulted in suicide. 

Before the medical malpractice suit can be filed, the plaintiff must take specific steps. The plaintiff must find a qualified medical expert to attest to the plaintiff’s case. Then the plaintiff must obtain and submit the expert’s certificate of merit. 

Understanding the Case through the Trial

Medical Malpractice

During the pretrial, both parties must use discovery to share information on interrogatories, documents, and deposition. Here, it is possible that the case is negotiated and settled before the trial. The case then moves from the pretrial stage to the trial if both parties cannot negotiate and settle.

The plaintiff is responsible for proving all elements with evidence. In most cases, both sides have experts to testify regarding the standard of care and other factors. The judge or jury then examines the evidence to decide which is the credible side. 

The fact-finder assesses damages in cooperation with the judge or jury if the plaintiff prevails. The losing party may also want a new trial. If the plaintiff is dissatisfied by a small judgment, they may move for additional trials. If the defendant is dissatisfied with a large judgment, they may move for remittitur. An appeal from the judgment may be taken by either party.

Both parties usually provide an expert to testify about the standard of care. This expert must be qualified by the courts as an expert in a medical malpractice case. To be qualified, the courts require the expert to have adequate knowledge, education, training, and experience regarding the issue. If they do not, their opinion is considered unreliable. The experts’ proposed testimony must meet certain criteria to be considered reliable, as not everyone with a diploma can be considered qualified by courts. There are two models currently used in the US to evaluate if the proposed testimony is reliable.

All federal courts and most state courts use a gatekeeper model. This model was formulated from certain US Supreme Court Cases, is more common, and some believe this model to be more reliable. 

A Daubert hearing, without the jury, will occur pretrial. A daubert hearing consists of four components regarding the expert and the expert’s testimony. The judge considers whether the theory or technique has been or can be tested, if the theory or technique has been through peer review and publication, if there is a high known or potential rate of error, and if there are standards that control the operation of the technique. The judge considers the presented evidence, and determines if the expert’s testimony is relevant and reliable. 

One limitation of the Daubert is that the judge may confirm testimony in which the data may be highly contested. This is because self published papers and non peer reviewed journals may be used to back up the experts testimony. It is also possible that the judge appointed for Daubert does not have the relevant scientific and medical training. 

Some state courts use a model called the Frye test which relies on scientific consensus. This model is not used at the federal level or during a Daubert hearing, as some testimonies that pass the Frye test would not pass the gatekeeper model. 

Damages usually include compensatory damages. In some cases, damages can also include punitive damages. Economic compensatory damages include financial losses. These financial losses include medical and life care expenses, lost wages, and lost earning capacity. Economic compensatory damages may be considered for past and future losses. Non-economic damages are regarding the injury itself. This can include harm (physical and psychological), such as loss of vision, loss of a body part, disability resulting in decreased quality of life, loss of a loved one resulting in reduced quality of life, severe pain, and emotional distress. Punitive damages are only allowed in certain states, and usually as a result of reckless conduct. 

Medical malpractice lawsuits have a limitation period, which is a time limit set by the statute that determines the time a lawsuit can be filed. Limitation periods can also be called periods of prescription or prescriptive periods. Each jurisdiction and type of malpractice has a different limitation period. Most states have exceptions if a minor was the one injured due to medical malpractice. 

The majority of physicians in the US can expect to have a malpractice claim filed against them. Male doctors have a 2.5 times chance higher to have a malpractice claim filed against them compared to female doctors. 

Medical Malpractice

However, many groups are against medical malpractice litigation as it is quite costly, unpredictable, and inefficient. These groups suggest special medical malpractice courts, limits on noneconomic damages (punitive damages), and reduction in the statute of limitations of actions as alternatives to the current malpractice system. 

Many places have caps on the non-economic damages. This is to help decrease hospital and physician costs and to control and reduce medical malpractice insurance costs. Caps are important for the defendant as they place a uniform limit on noneconomic damages. 

A research paper in 2003 determined that malpractice suits are not responsible for an increase in insurance, do not affect the size of the physician workforce, and treatments are not increased as a response to malpractice liability. Another study in 2014 determined that restricting malpractice suits do not reduce health care costs or does not reduce the incidence of defensive medicine. 

 

Source Information: Article from Wikipedia.

Note: Content may be edited for style and length. 

 

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