Medical Malpractice

Medical Malpractice

Malpractice Medical Malpractice

Introduction to Medical Malpractice

Medical malpractice is the most common type of malpractice lawsuit. It typically involves the negligence of a physician while diagnosing or treating a patient. In the past, courts decided whether a physician’s conduct was negligent by comparing that conduct with the practices in the locality where the doctor worked or with the practices of his or her field of medicine. These comparisons made it difficult for injured patients to win malpractice lawsuits. Other doctors who could describe the practices in the locality were often reluctant to testify against their colleagues. More recently, courts have applied a national standard for professional conduct when determining whether malpractice occurred.

A small proportion of medical malpractice cases result from the intentional misconduct of the physician, such as improperly touching a patient who is unconscious. However, plaintiffs who are harmed in such a manner typically charge that the physician committed battery, an intentional tort, rather than alleging malpractice. A physician may also commit malpractice by doing something without obtaining the patient’s informed consent. For example, a doctor may commit malpractice by giving a patient an experimental drug without first informing the patient about potential risks or side effects, and then obtaining the patient’s consent to use the drug.

Most physicians purchase insurance to protect themselves from the high cost of malpractice lawsuits. In the mid-1970s and again in the mid-1980s, insurance companies sharply increased the cost of medical malpractice insurance. Many reasons for the rising costs were suggested. Some people blamed the insurance industry, claiming that insurance companies charged excessive amounts. Others claimed that lawyers were to blame because they brought far too many medical malpractice actions, including many that had no merit. Still others charged that the rise in litigation was the result of increasingly complex and specialized medical practices associated with the development of new medical procedures, equipment, and medications.

In response to the rapid rise in insurance costs (and the resulting increase in the cost of health care), many states passed legislation designed to reform tort law. These reforms provided various restrictions on medical malpractice suits, including limitations on the amount of damages that could be awarded or the fees that an attorney could receive. Some states adopted procedural restrictions, such as shortening the time period in which a plaintiff is permitted to file a claim or requiring plaintiffs to submit their claims to screening panels that review the claims and attempt to resolve disputes prior to litigation.

These reform statutes have generated controversy. A number of state supreme courts have found various measures to be in violation of state constitutional protections. For example, courts have invalidated laws that seriously limit the rights of plaintiffs to file suit or that severely limit damage awards. As the rise in medical insurance costs tapered off at the end of the 1980s, the pressure to reduce malpractice actions also diminished.” (1)

Human Tissue Legislation and Medical Practice: a Benefit or a Burden?

Paper produced by Sheila A M Mclean, Alastair Paulin – Campbell, Kerry Gutridge, Helen Harper and published in 2006
in the Medical law international. Here is the abstract:

The scandals surrounding organ removal and retention throughout the United Kingdom provoked several Inquiries and ultimately led to law reform. Although the medical professions were well represented at the Inquiries, little was heard of the voices of those at the ‘coal face’. In this scoping study, funded by the Wellcome Trust, we interviewed a number of doctors and others engaged in the uses of human tissue and organs to explore their hopes, concerns and fears about the role of the law in their practices. We found that those involved in transplantation were more aware of, and more actively involve with, the law, whereas others, such as pathologists, had less direct engagement with the law. Most of those we interviewed expressed the hope that law reform would provide much-needed clarity. Although some expressed concern that the law might be over-intrusive, most felt that the placing of authority firmly in the hands of the person him or her self to decide what should happen to their bodies was to be welcomed.


Notes and References

Further Reading (Papers)

Emergency department utilization after the implementation of Massachusetts health reform. Peter B Smulowitz, Robert Lipton, +12 authors Bruce E. Landon. Annals of emergency medicine, 2011

Reforming long-term care in the United States: findings from a national survey of specialists. Edward Alan Miller, Vincent Mor, Melissa A. Clark, The Gerontologist, 2010

Retooling Social Security for the 21st century. C. Eugene Steuerle, Jon M. Bakija, Social security bulletin, 1997