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Medical Malpractice & Negligent Care

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The basic definition of medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and causes injury to the patient. The word "malpractice" has a connotation of greater culpability than negligence. 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.

Although the term is most often associated with physicians, medical malpractice includes the acts and omissions of 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.

The plaintiff must prove three things:

• That the provider breached his/her duty of care towards the patient, i.e. failed to do something that a reasonably prudent provider in the same field would have done under the same or similar circumstances, or did something that no reasonably prudent provider in the same field would have done under the same or similar circumstances.
• That this breach caused loss or damage.
• That it is fair and reasonable to hold the defendant liable to pay damages for the harm caused by the malpractice.

Since most medical providers have malpractice insurance, a case in the U.S. usually begins as an insurance claim, made by the attorney for the patient. If liability is admitted and damages can be agreed, the case will be settled early to reduce the amount of costs payable. Otherwise, the plaintiff will file suit in the appropriate court. Between the filing of suit and the trial, the attorneys for the parties will engage in discovery, which includes interrogatories, requests for documents, and depositions.

At trial, the plaintiff has the burden of proof. Expert witnesses are usually required to testify as to practice standards, while lay witnesses must confine their testimony to facts they perceived with their own senses. To be qualified as an expert, a person must have a sufficient level of education, training, and experience in the relevant field, and it must be shown that their testimony will assist the judge and/or jury in determining a contested issue. The law requires that lay jurors or judges, being untrained in medicine, must accept expert evidence as to whether the provider deviated from the requisite standards but since the plaintiff and the defendant will usually each hire their own experts, there will be conflicting opinions.

The plaintiff's damages may include compensatory and punitive damages. Compensatory damages include 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 claims include damages for physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability, pain and suffering and emotional distress. Punitive damages are rarely awarded in malpractice cases [1] and are subject to strict controls. The factfinder must assess the economic, non-economic and punitive damages.

The factfinder will render a verdict to the winning party. 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. However, judges will only rarely disturb the verdict of a jury. Either side may take an appeal from the judgment, but appeals more often than not affirm the judgment of the trial courts.

From Wikipedia, the free encyclopedia