Medical Malpractice 2018-08-23T14:11:37+00:00

Medical Malpractice

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We trust doctors with our health and our lives. And with good reason, as we have some of the best doctors in the world.

But even the best of the best can make a mistake. Yet, how can we tell if and when a doctor’s mistake becomes the grounds for a lawsuit?

Medical malpractice is negligence committed by a medical professional. While many accidents occur in hospitals and in the practice of medicine in general, some of them could have been avoided. When a physician makes a preventable error that results in injury, the patient may file a medical malpractice suit for damages.

Elements of a Medical Malpractice Claim

For negligence to be “actionable” (having all the components necessary to constitute a viable cause of action — and thus a legitimate lawsuit), the following elements must exist:

  • There must be a duty owed to someone;
  • There must be a breach of that duty; and
  • The breach of that duty must result in harm or damage that is proximately caused by that breach.

“Proximate cause” is a legal term that, in the medical malpractice sense, essentially asks whether, “but for” the alleged negligence of the medical professional, the harm or injury to the patient would have occurred. If the injury still would have occurred regardless of the alleged act of malpractice, then there is no valid claim. See Elements of a Negligence Case for more details.

The Duty of Care

A physician must owe a duty of care to patients before his or her competency in performing that duty can be judged. Generally, in the United States, a person has no affirmative duty to assist injured individuals in the absence of a special relationship with them (such as doctor-patient, attorney-client, guardian-ward, etc.). However, once a doctor voluntarily decides to assist others or come to their aid, he or she becomes liable for any injury that results from any negligence during that assistance. Once the requisite doctor-patient relationship is established, the doctor owes to the patient a duty of care and treatment with the degree of skill, care, and diligence as possessed by, or expected of, a reasonably competent physician under the same or similar circumstances. This can be different than the standard of care for treatment and surgery.

Tort Reform

Tort reform is a change or alteration laws regarding who can sue or be sued, mostly to limit large awards for damages. Much of the reasoning behind tort reform is the notion that medical malpractice lawsuits are one of the biggest drivers of high medical costs. However, a study published by the Congressional Budget Office in 2009 concluded that limiting malpractice liability would limit health care spending in the U.S. by just one-half of 1 percent. Still, fear of being sued has led many doctors to perform what is called “defensive medicine,” the act of ordering extra tests and using expensive imaging devices in order to provide a defense for any possible lawsuit by the patient.

More than half the states now limit damage awards and many have established limits on attorney’s fees. Moreover, almost all states now have two-year statutes of limitations (time limits) for standard claims, and have eliminated joint and several liability in malpractice law suits.

Medical Malpractice Law


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