Medical malpractice

Most physicians are competent, ethical, and highly skilled. However, medicaldoctors are human. Medical malpractice occurs when a doctor or other health care provider is negligent or fails to follow accepted standards of practice,causing harm to a patient.

Medicine is not without risk. Doctors cannot reasonably guarantee that theirtreatments will be successful, but they are expected to do what a reasonablyqualified and prudent colleague would do under the same circumstances.

Although ancient peoples sometimes killed shamans who caused a patient's death, the idea of taking physicians to court for their medical misjudgments is arelatively new idea. The laws of ancient Greece and Rome, and those of Europe through the Middle Ages gave doctors immunity from punishment for their professional actions. In fourteenth century England, at a time that the Great Plague had eliminated a third of the population, people began to see their doctors as less than perfect. In 1375, shortly after the first plague had subsided, an obscure malpractice case was heard before the court of John Cavendish of the Court of King's Bench. A highly regarded surgeon by the name of John Swanlond had treated the crushed and mangled hand of one Agnes of Stratton. Thecondition of her hand had not improved after a few weeks, and the patient consulted a second surgeon, who informed her that Dr. Swanlond's treatment wasdeficient. When her hand became severely deformed, she sued Swanlond. Although the suit was voided because of a technical error made by the patient's lawyer, the judge made the following note in his written opinion: "If a smith undertakes to cure my horse, and the horse is harmed by his negligence or failure to cure in a reasonable time, it is just that he should be liable." This case set the precedent upon which has rested all subsequent Western malpracticelitigation.

The first recorded malpractice case in the United States (Cross v. Guthery) was heard in Connecticut shortly before the American Revolution. When Mrs. Cross complained that there was something wrong with her breast, her husband sent for a doctor named Guthery. The doctor examined Mrs. Cross, diagnosed her ailment as scrofula, and amputated her breast. Shortly after the surgery, Mrs. Cross hemorrhaged to death. Dr. Guthery expressed his regrets to herhusband, and then sent him a bill for fifteen pounds. Cross hired a lawyer, who persuaded a jury to dismiss Dr. Guthery's bill and award Cross forty pounds as compensation for the loss of his wife's companionship.

Today, the American doctor has a greater chance of being sued than any otherprofessional in the United States, or any other doctor in the world. In 1989,there were approximately 900 malpractice complaints brought before Americandoctors every day. And the United States in the only country in the world where anything like this situation exists. The rate in which doctors were sued in Canada in 1989 was 10 times less than in the U.S., and in Great Britain only 3 or 4 out of 1000 physicians could expect to be sued (while some 43 percent of all obstetrician-gynecologists in New York State had been sued 3 or moretimes).

The origins of this epidemic in malpractice suits in this country almost certainly have more to do with the for-profit medical system than with negligenceon the part of American doctors. In most of the other nations of the world,people have come to believe that access medical care is a right of citizenship. But in the United states, it is not uncommon for the poor (including manywho do not qualify for Medicaid or Medicare) to be turned away from hospitalemergency rooms because they do not have medical insurance, or for doctors torefuse treatment unless a patient can demonstrate his or her ability to payfor services. On the other hand, access to legal assistance is less dependenton a client's ability to pay, and it is far easier for some people to obtaina lawyer than it is to get a doctor. (In cases of highly publicized occurrences of physician-induced injury, the victim, or the victim's family, may actually be sought out by case-hungry malpractice attorneys.)

One informed physician has argued persuasively that as long as medical practitioners continue to command six-figure annual incomes (but nevertheless turnaway persons who lack medical insurance) and lobby against comprehensive universal health insurance and fee regulation, they can expect to receive lettersfrom attorneys representing patients in malpractice suits. That writer's solution to this problem, short of overhauling the U.S. healthcare system, wouldbe to eliminate litigation by using arbitration boards to decide malpracticedisputes.

The law of medical malpractice varies from nation to nation, and in the United States, from state to state. Generally, however, a successful malpractice claim must first establish that the caregiver had a legal duty to the affectedpatient. Inhumane as it might seem, a doctor walking down a street or eatingat a restaurant in most U.S. states has no legal responsibility to help an injured person. However, a doctor who offers voluntary aid becomes liable forany injury resulting from malpractice. Clearly, a legal duty exists when a patient visits a doctor's office seeking treatment and the doctor agrees to provide it. In certain cases, physicians may also have a duty to non-patients. For example, a jury might determine that a doctor who failed to diagnose epilepsy in a patient has a legal responsibility to others injured in an automobile accident caused by an epileptic seizure suffered by the patient.

A valid malpractice lawsuit must establish that the caregiver's duty to the patient was breached, failing to meet accepted standards of care. For this reason, medical malpractice suits often involve testimony from expert witnesses,who sometimes provide conflicting opinions about what constitutes a reasonable standard of care. Often, such standards are established by medical specialty associations. Doctors are expected to keep themselves informed about current treatment methods, but in many cases more than one treatment option existsand a physician is free to select from those options that would be considered reasonable by a substantial number of medical colleagues. In some cases, doctors try to perform procedures that are beyond their capabilities. It can beuseful to check the credentials of your doctor. Physicians who claim to be specialists but are not certified by the appropriate specialty board may lackthe training or skills to provide appropriate treatment.

Finally, a valid malpractice suit must establish that the doctor's breach ofduty caused real damage to the patient. Depending on the jurisdiction, such harm may include physical and mental suffering, lost income, and other financial losses. However, some states (California and Indiana, for instance) significantly limit compensation available in cases of medical negligence.

According to some legal experts, the scenario for a malpractice suit usuallyruns something as follows. First, the medical practitioner must be shown to have been guilty of negligence, which is to say carelessness when the medicalpractitioner had, but breached, a duty to act in a reasonable manner (usuallybased on the testimony of an expert witness, i.e., someone in the same or similar specialty as the defendant who can explain technical, scientific and medical issues to a jury) toward the patient.

Note: medical malpractice is a special case of negligence committed by a medical practitioner. In malpractice cases, negligence is referred to as a deviation from the standard of care, which is defined as the level of skill, competence, knowledge and expertise ordinarily expected of the defendant or othersof the same specialty under similar circumstances.

At rates of $300 to $500 per hour, charges for expert witnesses typically runfrom $2,500 to $5,000 or more, depending on the complexity of the case. If the malpractice claim is to hold up in court, the expert witness must agree totestify that he or she believes the medical deviated from the standard of care and fell below the minimum requirements expected of him by his failure toact in a specified manner.

Once negligence has been established, the injury, which may be either economic or personal, must be identified. Economic injuries are objective, tangibleand easily calculated. Personal injuries are more subjective, intangible anddifficult to calculate.

In most states, malpractice suits must also demonstrate the existence of causation, i.e., it must be shown that the injury flowed in such a natural, direct and continuous sequence from the wrong committed that it can be reasonablysaid that but for the wrong, the injury would not have occurred.

Finally, it is important to keep in mind that every state has a minimum jurisdictional limit for claimed damages in circuit court. If a claim does not exceed those limits, the injured party will not be allowed to present the case.In Florida, the minimum jurisdictional limit is $15,000.00 for circuit court,with anything less than that going to County or Small Claims Courts. In cases where claimed damages do not exceed the minimum jurisdictional limits, theclaimant will probably have to present his or her own case, because attorneysare generally unwilling to take low value cases. In such cases, he or she isleft with the choice of either escalating the amount of damages sought and hiring an attorney, or abandoning the case, because, to borrow from one malpractice attorney's analogy, one has about as much chance of succeeding as the local high school football team has of beating Notre Dame if one tries to pursue the case without legal assistance.

How common is medical malpractice? One landmark study, based on case recordsfrom New York State, found that among 31,429 records from the year 1984, there were 1,278 cases of injury likely caused by medical management (as opposedto disease) that either lengthened the hospital stay or was responsible for adisability at the time of release from hospital. Of those cases, 306 were attributed to negligence. The researchers found that more than half of the injuries reported were minor, with complete recovery reported within one month. However, 14% of the injuries lasted between one and six months, 2.6% involvedpermanent disability, and 13.6% resulted in death.

Based on those findings, the researchers concluded that negligence was involved in the care of about one percent of all New York State hospital inpatients. Individual hospitals were found to have widely varying rates of negligence,and university hospitals had less than half the rates of negligence attributed to non-teaching hospitals.

The study also found that lawsuits are not filed in most cases of medical malpractice. On the other hand, the researchers were unable to find any evidenceof negligence in 39 of the 47 cases in which malpractice suits were actuallyfiled. Furthermore, they found that payments were made in 40% of those malpractice suits, even though most appeared to be without merit.

Other researchers have reported that as few as two percent of patients affected by doctor negligence ever file lawsuits, that less than 10% of medical malpractice claims ever go to trial, and only five percent proceed to a verdict.Most malpractice cases--more than 70%--are won by the caregivers sued.

Many malpractice suits involve not just doctors, but numerous codefendants including nurses, hospital staff, pharmacists, therapists, even manufacturers of drugs or medical equipment.

A doctor's violation of patient confidentiality may be grounds for a malpractice suit, if the breach caused harm to the patient. An example might be an AIDS patient written out of an inheritance after a doctor gossiped about his condition and word got back to the patient's family.

Malpractice may also be present if a patient has not given informed consent before undergoing treatment. Your doctor should discuss the nature, risks andbenefits of any proposed treatment, as well as other reasonable options. Manyhospitals and doctors require patients sign a consent form indicating that they assume any risks from the procedure. However, such forms may not shield acaregiver from a malpractice suit if negligence has occurred or the risks were not fully explained to the patient. In the case of needed emergency treatment, a doctor is not required to obtain informed consent. When patients are considered unable to make an informed decision because of age or other factors, consent is required from the patient's legal guardian.

A misdiagnosis by a doctor is not necessarily grounds for a malpractice suit,unless the doctor was negligent in failing to take a proper medical history,ordering appropriate tests, or recognizing obvious symptoms. Critics of thehealth care system argue that the threat of malpractice suits forces doctorsto practice "defensive" medicine, ordering costly tests that would otherwisebe unnecessary. Many doctors, however, argue that "defensive" medicine is good medicine.

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