Wednesday, July 13, 2016
Medical malpractice is negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. Since the 1970s, medical malpractice has been a controversial social issue. Physicians have complained about the large number of malpractice suits and have urged legal reforms to curb large damage awards, whereas tort attorneys have argued that negligence suits are an effective way of compensating victims of negligence and of policing the medical profession.
A patient who claims negligent medical malpractice must prove four elements:
(1) a duty of care was owed by the physician;
(2) the physician violated the applicable standard of care;
(3) the person suffered a compensable injury
(4) the injury was caused in fact and approximately caused by the substandard conduct.
The burden of proving these elements is on the complainant in a malpractice lawsuit.
According to the Journal of the American Medical Association (JAMA), medical negligence is the third leading cause of death in the U.S. right after heart disease and cancer. Physicians, as professionals have a duty of care to those who seek their treatment. This element is rarely an issue in malpractice litigation, because once a doctor agrees to treat a patient, he or she has a professional duty to provide competent care. More important is that the plaintiff must show some actual, compensable injury that is the result of the alleged negligent care. Proof of injury can include the physical effects of the treatment performed by the physician, but it can also include emotional effects. The amount of compensation at issue is usually a highly contested part of the litigation.
Medical malpractice litigation began to increase in the 1960s. Tort lawyers were able to break the traditional "conspiracy of silence" that discouraged physicians from testifying about the negligence of colleagues or serving as expert witnesses. By the 1970s physicians alleged that malpractice claims were interfering with their medical practices, with insurance companies either refusing to write malpractice policies for them or charging inflated premiums.
Over the years, physicians and health care providers argued that malpractice claims were also driving up the cost of health care. They contended that jury verdicts in the millions of dollars had to be passed on to the consumer in the form of higher insurance premiums and physician fees.