Medical Malpractice Law

By Aaron Larson

March, 2005

Contents

• Elements of a Medical Malpractice Claim
• Examples of Medical Malpractice
• The Effects of "Tort Reform"
• How Long Will It Take?

Medical malpractice occurs where a health care professional acts in a negligent manner when treating a patient's medical condition. Malpractice can occur from an action taken by the medical practitioner, or by the failure to take a medically appropriate action.

If the patient is not harmed by the physician's error, the patient cannot ordinarily recover damages through a malpractice lawsuit as the result of the error. Consider an example where a doctor misdiagnoses stomach pain as caused by appendicitis, but surgery discloses that the pain resulted from a perforated ulcer. If the patient would have required the same type of surgery to repair the ulcer, the patient will probably be unable to bring a lawsuit - the surgery was necessary even with the correct diagnosis. However, if the patient was only suffering from indigestion, the unnecessary surgical procedure might support a medical malpractice action.

Elements of a Medical Malpractice Claim

To prevail in a medical malpractice case, a plaintiff must typically prove all of the following by a preponderance of the evidence:

• Duty: The existence of an treating relationship with the defendant health care provider;
• Breach: Negligence in the provision of medical care to the plaintiff;
• Causation: That the negligence was a proximate cause of an injury;
• Damages: The fact and extent of the injury alleged.

Medical malpractice laws vary from state to state, and you should be aware that state may require elements of proof different from those listed above.

Establishing the nature of a health care provider's duty can be one of the most difficult aspects of a medical malpractice case, sometimes involving several expert witnesses on each side testifying about the governing "standard of care", and whether the defendant's conduct can be said to have violated that standard of care.

Examples of Medical Malpractice

Possible grounds for a medical malpractice action include:

• Failure to diagnose a medical condition;
• Misdiagnosis of a disease or medical condition;
• Failure to provide appropriate treatment for a medical condition;
• Unreasonable delay in treating a diagnosed medical condition; and
• Failure to obtain "informed consent".

A medical practitioner may be legally liable to a patient if the patient does not give "informed consent" to a medical procedure that results in a harm to the patient, even if the procedure is performed properly. For example, if a doctor does not tell a patient that a surgical procedure has a 60% chance of causing permanent paralysis, the patient does not have the necessary information to make an informed choice between undergoing or refusing the operation. If the patient has the operation and suffers paralysis as a result, the doctor may be liable even if the operation was performed flawlessly, as the patient might have refused the surgery if the risks were known.

Questions of "informed consent" can be complicated by the circumstances under which a patient is said to have been informed of the risks of a medical procedure, and of having consented to the procedure despite those risks. There is a valid question as to whether a patient on a hospital emergency gurney, in desperate need of medical treatment, can truly be said to comprehend and consent to treatment based upon a rushed explanation and written consent form submitted for the patient's signature.

The Effects of "Tort Reform"

Medical malpractice actions have been significantly affected by "tort reform." Malpractice cases are very expensive to litigate, and a plaintiff's ability to recover damages will often be limited by statute or by an amendment of the state's constitution. To bring a malpractice case, it is almost always necessary to seek advice from medical experts, and medical experts are very costly to hire. Due to the highly technical nature of medical malpractice litigation, a plaintiff will usually benefit from retaining an attorney with extensive experience with medical malpractice law, and who has the resources and funds necessary to develop the malpractice case, hire appropriate experts and, if necessary, to take the case to trial.

Due to the very high cost of prosecuting a malpractice case, even when there is a clear case of medical negligence, where the damages suffered are not appreciably greater than the anticipated cost of litigation, a plaintiff may not be able to find a lawyer willing to accept the case. Sometimes the cost of litigation will exceed the amount of any likely award of damages, and and a plaintiff will be forced to choose between abandoning a malpractice claim or pursuing it at a financial loss "as a matter of principle."

There have been some past tort reform efforts which appear to have reduced the number of unsubstantiated malpractice claims filed, such as the requirement of having a medical doctor certify that the claim has merit before it may be filed, Yet the net effect of most recent "tort reform" initiatives, such as caps on damages, has been to impair the legal rights and remedies of the most severely injured victims of malpractice. Such measures do nothing to impede frivolous malpractice lawsuits. The rare "frivolous" malpractice case that is actually filed is typically either dismissed by the trial court for lack of merit, or settled for a "nuisance value" far below the damages cap.

How Long Will It Take?

Medical malpractice cases tend to be very complex and, even where liability appears clear-cut, in order to secure an appropriate settlement or award of damages, the litigation process can take a very long time. Malpractice insurance companies and their lawyers often seem intent on driving up the cost of litigation, or dragging out proceedings, in order to increase the financial pressures on the plaintiff and the plaintiff's lawyer. While some cases are resolved quickly, it may be months or years before your case is resolved.