American Medical Malpractice Law

American Medical Malpractice Law:

Its Past, Present and Future

Background

The term “medical malpractice” is not something that most people are not familiar with.

Some might have seen high-profile cases of it happening worldwide being broadcast in the news with photographs or video footages as well as the people right in the centre of the case crying as they narrate the injuries that have been done to them by their healthcare providers. These people would then form the impression that medical malpractice is always associated with some kind of tragedy.

Many more might have a more light-hearted perspective, having seen TV shows like Nip/Tuck showing stereotypically vain women who have got some cosmetic surgeries done sue their doctors when their nose did not turn out exactly the way they wanted as in the photo off some celebrity fashion and beauty magazine that they brought to the clinic, or some other similarly superfluous reasons.

However, medical malpractice is not necessarily one of the two aforementioned. Medical malpractice is defined as “any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient” (Bal 2009).

One would imagine that in the US, where the healthcare system is renowned across the world for its reputation in providing high quality healthcare, medical malpractice does not occur very often. However, medical malpractice litigations are relatively common cases that are heard in US courts (Bal 2009).

Introduction

Every year there are reports or research conducted on the numbers of patient injuries or deaths that can be attributed to medical errors, and each year the number increases.

Fifteen years ago, the Institute of Medicine publicized the fact that up to 98,000 people die each year due to medical mistakes in its report “To Err Is Human” (Allen 2013). The report stirred up controversy among the medical community, with many hospitals uniting to speak out against the findings, disputing that number (ibid). However, hospitals largely accept this number these days and the media often quotes it in relation to medical malpractice cases (ibid).

The number almost doubled in 2010 when the Office of Inspector General for Health and Human Services expressed that 180,000 patients a year die due to poor hospital care provided under the health insurance program Medicare (ibid).

Three years later, a new study in the Journal of Patient Safety showed that between 210,000 and 440,000 patients that go into the hospital each year suffer from some kind of harm that could have been prevented by their healthcare providers and die from it (James 2013).

In the US, heart disease is the leading cause of death, as many people might know. This is followed closely by cancer, which most people also know. However, many people are unaware that these new, higher estimates of patient deaths in hospital care show that medical negligence rounds up the top three leading causes of death in the nation.

Even though a spokesman of the American Hospital Association has expressed that they have more confidence in the Institute of Medicine’s 98,000 patient deaths a year arising from medical negligence, therefore not endorsing the higher estimates published in the study in the Journal of Patient Safety last year, ultimately the issue is not about the numbers, but that medical malpractice in the US is a crisis that has to be looked at and corrected (Allen 2013). That is where medical malpractice law comes into the picture.

Medical Malpractice Law in the Past

In every learned profession, the undertaking to demonstrate a reasonable degree of care and skill required for said profession is expected of every person who enters it - this is a concept that can be traced back to the laws of ancient Rome and England (Bal 2009).

For medical practitioners, the emphasis on medical responsibility was highlighted even back in 2030 BC when the Code of Hammurabi stated that “If the doctor has treated a gentlemen with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands” (Powis Smith 1931).

Here in the US, the appearance of medical malpractice suits started in the 1800s, but they were rare and did not have much impact (Bal 2009). It was only after the 1960s that medical malpractice claims started displaying increasing frequency (ibid).

Medical Malpractice Law Now

These days, patients filing medical malpractice lawsuits claiming that their doctor have not provided them with sufficient care is no longer an irregular occurrence (Bal 2009). In 2007, a research that surveyed specialty arthroplasty surgeons found that more than 70% of respondents had encountered a medical malpractice claim at some point during their career (Upadhyay et al 2007).

In alleging medical negligence, patients have to file their allegations within a fixed amount of time that might differ from state to state called the “statute of limitation”, and prove that they have suffered from an injury that can be contributed to subpar medical care in order to obtain monetary compensation (ibid). The monetary compensation that will be awarded to the patient, also known as damages, is determined by the court after taking into consideration actual economic losses including lost income and medical care costs required in the future due to the injury as well as noneconomic losses like emotional trauma and pain (ibid). Medical malpractice insurance is usually carried by all practicing physicians in the US as self-protection in case they encounter medical negligence or unintentional injury claims by patients, and could also be a requirement for employment or to enjoy certain privileges at some hospitals (ibid).

The medical malpractice law in the US at the present originates from English common law in the 19th century (Bal 2009). In some countries, medical malpractice law is under the authority of the federal government, but that is not the case in the US (ibid). The medical malpractice law here is under the authority of individual states, and therefore the structure of the law is determined by rulings of state courts that might vary from state to state (ibid).

In general, a medical malpractice lawsuit is filed in a state trial court, where the case will be heard and decided by a jury, which is a group of individuals that have been chosen from the public and will be guided by the court throughout the entire legal proceedings to hear all evidence presented and make a decision on the case (Bal 2009). In the case that the malpractice claim concerns federally-associated clinics or other such facilities, the lawsuit can then be filed in a federal district court (ibid). Medical malpractice lawsuits are rarely filed or moved to a federal court unless a federal question or federal constitutional issue is brought into question, or if the parties involved in the case are from different states (ibid).

To file a medical malpractice claim, the patient, known as the plaintiff, has to first file a complaint containing the list of allegations of the wrongs that have been committed by the physician or hospital to which the physician belongs, also known as the defendant, with a demand for relief (Bal 2009). If it has been decided by the court that legal remedy is due to the plaintiff, the court will then enter judgment for the plaintiff and issue a court order for monetary damages to be awarded to the plaintiff (ibid).

However, for the plaintiff to be successful in their medical malpractice lawsuit, they have to prove the four elements of medical malpractice as stated by Gittler and Goldstein (1996):

(1)the existence of a legal duty on the part of the doctor to provide care or treatment to the patient

(2)a breach of this duty by a failure of the treating doctor to adhere to the standards of the profession

(3)a causal relationship between such breach of duty and injury to the patient

(4)the existence of damages that flow from the injury such that the legal system can provide redress

The first element states that once the doctor has established a relationship with their patient in a professional capacity, such as in a clinic or a hospital, then they have the legal duty to provide reasonable medical care to the patient (Bal 2009). This is the easiest element for the patient to prove as the doctor’s duty is automatically assumed when they are assigned the patient (ibid).

In the second element, the patient has to prove that the doctor has failed to provide a standard of care that other doctors will have provided them in a similar setting (Bal 2009). This will require expert witness testimony where other doctors will be asked to take the stand as the jury consisting of lay people might not understand the subtle differences in medical care (ibid).

To add to this second element, Clinical Practice Guidelines, which outlines the standard of care that a physician owes to their patient, is essential in the case as it is the key to establishing if the standard of care has been breached (Timothy, Mackey and Liang 2011). Patients can use it as inculpatory evidence to allege the breach, but similarly, physicians can also use it as exculpatory evidence to prove that they have complied with the guidelines and thus provided their patient with the standard of care (ibid).

For the third element, the patient will need to prove that the alleged wrong committed by their doctor directly caused the injury or harm they suffered (Bal 2009).

Lastly, the fourth element addresses the issue of damages, where the court will calculate the monetary compensation due to the patient for their injury (Bal 2009).

However, it should be noted that, like most cases of civil litigation, it is rare for medical malpractice lawsuits to reach the trial stage (Bal 2009). This is because the legal system in the US encourages self-resolution during the pre-trial process of discovery - where information is shared and facts are clarified between the parties of the plaintiff and the defendant - that starts right after the filing of the lawsuit up until the case goes to trial (ibid).

During this process, there will be a deposition where the physician is questioned under oath by the patient’s attorney and then cross-examined by other attorneys in attendance until all parties are satisfied with the information that they have gathered and have no further questions (Bal 2009). Generally, all parties will have been able to reach sufficient mutual understanding to settle the case out of court after the deposition (ibid).

If medical malpractice lawsuit does go to trial, however, it will be a burden for both the patient and the physician as the process if lengthy and causes a certain amount of stress and distress to both parties (Bal 2009).

The Future of Medical Malpractice Law in the US

Even though medical malpractice lawsuits are common these days, or perhaps especially because it is so common these days, it remains a bone of contention among many in the medical community. Studdert, Mello and Brennan summarized the issue in their Health Policy Report quite succinctly: “Physicians revile malpractice claims as random events that visit unwarranted expense and emotional pain on competent, hardworking practitioners. Commentators lament the ‘lawsuit lottery’, which provides windfalls for some patients, but no compensation for the vast majority of patients injured by medical care” (2004).

While medical malpractice litigation is meant to be a form of protection for patients against medical negligence, it can be exploited by trial attorneys and certain consumer groups to put undue stress on the medical community, using litigation in such a way where the goal is no longer to promote the practice of safe medicine and to compensate patients that have been wrongfully injured due to medical negligence (Studdert, Mello and Brennan 2004).

Therefore, to move forward, there has to be certain tort reforms to ensure that medical malpractice litigation is used correctly. There are three types of suggested tort reforms (Studdert, Mello and Brennan 2004):

(1)limiting access to court by shortening the statute of limitations and encouraging settlement out of court

(2)modifying liability rules like by implementing higher standards for patients to prove alleged breach so there are lesser claims

(3)capping damages in order to deter attorneys that might push for trial for the potential favorable return

Conclusion

Medical responsibility, due to the life and death nature of the medical field, has always been regarded with the utmost importance. Medical malpractice law can be traced back to the time of ancient Rome. These days, medical malpractice lawsuits happen when a patient suffers harm or injury due to an alleged subpar standard of care provided by their physician and so seeks legal remedy from the court. Conservative numbers in research have shown that medical negligence can cause 98,000 patient deaths a year up to 440,000 in newer, higher estimates. Medical malpractice trials are usually time-consuming processes and thus parties are encouraged to reach settlement out of court having exchanged all the facts. However, medical malpractice litigation can be exploited by some people who have certain interests in the outcome, and therefore, tort reforms are needed to ensure the future of the medical malpractice law in the US serves its purpose of protecting patients and ensuring safe medical practices.

References

Allen, M. (September 19, 2013). How Many Die From Medical Mistakes in US Hospitals? Retrieved from

Bal, BS. (2009). An Introduction to Medical Malpractice in the United States. Clinical Orthopedics and Related Research467(2), p.339-347.

Gittler GJ and Goldstein EJ. (1996). The Elements of Medical Malpractice: An Overview. Clinical Infectious Diseases 23, p.1152-1155.

James, JT. (September 2013). A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care. Journal of Patient Safety 9(3), p.122-128.

Powis Smith, JM. (1931). Origin & History of Hebrew Law. Chicago, IL: University of Chicago Press.

Studdert, DM, Mello, MM and Brennan TA. (2005). Health Policy Report: Medical Malpractice. The New England Journal of Medicine 350(3), p.283-292.

Timothy, K, Mackey, MAS and Liang, BA. (2011). The Role of Practice Guidelines in Medical Malpractice Litigation. Virtual Mentor: American Medical Association Journal of Ethics 13(1), p.36-41.

Upadhyay A, York S, Macaulay W, McGrory B, Robbennolt J, Bal BS. (2007). Medical Malpractice in Hip and Knee Arthroplasty. Journal of Arthroplasty 22(6), p.22-27.