Medical malpractice is professional negligence
by act or omission by a health care provider in which care provided
deviates from accepted standards of practice in the medical
community and causes injury or death to the patient. Standards
and regulations for medical malpractice vary by country and
jurisdiction within countries. Medical professionals are required
to maintain professional liability insurance to offset the risk
and costs of lawsuits based on medical malpractice.
A doctor would be liable for (depending on the circumstances)
such things as prescribing experimental drugs and performing
The medical malpractice claim
The plaintiff is or was the patient, or a legally designated
party acting on behalf of the patient, or – in the case of a
wrongful-death suit – the executor or administrator of a deceased
The defendant is the health care provider. Although a
'health care provider' usually refers to a physician, the term
includes any medical care provider, including dentists, nurses,
and therapists. As illustrated in Columbia Medical Center of
Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), "following
orders" may not protect nurses and other non-physicians from
liability when committing negligent acts. Relying on vicarious
liability or direct corporate negligence, claims may also be
brought against hospitals, clinics, managed care organizations
or medical corporations for the mistakes of their employees.
Elements of the case
A plaintiff must establish all four elements
of the tort of negligence for a successful medical malpractice
A duty was owed: a legal duty exists whenever a hospital
or health care provider undertakes care or treatment of a patient.
A duty was breached: the provider failed to conform to
the relevant standard of care. The standard of care is proved
by expert testimony or by obvious errors.
The breach caused an injury: The breach of duty was a
proximate cause of the injury.
Damages: Without damages (losses which may be pecuniary
or emotional), there is no basis for a claim, regardless of
whether the medical provider was negligent. Likewise, damages
can occur without negligence, for example, when someone dies
from a fatal disease.
Like all other tort cases, the plaintiff or their attorney
files a lawsuit in a court with appropriate jurisdiction.
Between the filing of suit and the trial, the parties are required
to share information through discovery. Such information includes
interrogatories, requests for documents and depositions. If
both parties agree, the case may be settled pre-trial on negotiated
terms. If the parties cannot agree, the case will proceed to
The plaintiff has the burden of proof to prove all the elements
by a preponderance (51%) of evidence. At trial, both parties
will usually present experts to testify as to the standard of
care required, and other technical issues. The fact-finder (judge
or jury) must then weigh all the evidence and determine which
side is the most credible.
The fact-finder will render a verdict for the prevailing party.
If the plaintiff prevails, the fact-finder will assess damages
within the parameters of the judge's instructions. The verdict
is then reduced to the judgment of the court. The losing party
may move for a new trial. In a few jurisdictions, a plaintiff
who is dissatisfied by a small judgment may move for additur.
In most jurisdictions, a defendant who is dissatisfied with
a large judgment may move for remittitur. Either side may take
an appeal from the judgment.
Expert witnesses must be qualified by the Court, based on the
prospective experts qualifications and the standards set from
legal precedent. To be qualified as an expert in a medical malpractice
case, a person must have a sufficient knowledge, education,
training, or experience regarding the specific issue before
the court to qualify the expert to give a reliable opinion on
a relevant issue. The qualifications of the expert are not the
deciding factors as to whether the individual will be qualified,
although they are certainly important considerations. In addition
to appropriate qualifications of the expert, the proposed testimony
must meet certain criteria for reliability. In the United States,
two models for evaluating the proposed testimony are used:
The more common (and some believe more reliable) approach used
by all federal courts and most state courts is the 'gatekeeper'
model, which is a test formulated from the US Supreme Court.
Before the trial, a will take place before the judge (without
the jury). The trial court judge must consider evidence presented
to determine whether an expert's "testimony rests on a reliable
foundation and is relevant to the task at hand. The hearing
considers 4 questions about the testimony the prospective expert
Some state courts still use the Frye test that relies on scientific
consensus to assess the admissibility of novel scientific evidence
expressly rejected the earlier federal rule's incorporation
of the Frye test. Expert testimony that would have passed the
Frye test is now excluded under the more stringent requirements
of Federal Rules of Evidence.
In view of the pre trial preparation of expert witnesses
is critical. A problem with that the presiding judge may admit
testimony which derives from highly contested data. The judge
may expand the limits contained in the "school of thought" precedent.
Papers that are self-published may be admitted as the basis
for expert testimony. Non-peer reviewed journals may also be
admitted in similar fashion. The only criterion is the opinion
of a single judge who, in all likelihood, has no relevant scientific
or medical training.
Many states also require that a certificate of merit before
a malpractice lawsuit is filed which requires a report from
a medical doctor that the doctor accused of negligence breached
the standard of care and caused injury to the Plaintiff.
The plaintiff's damages may include compensatory and punitive
damages. Compensatory damages are both economic and non-economic.
Economic damages include financial losses such as lost wages
(sometimes called lost earning capacity), medical expenses and
life care expenses. These damages may be assessed for past and
future losses. Non-economic damages are assessed for the injury
itself: physical and psychological harm, such as loss of vision,
loss of a limb or organ, the reduced enjoyment of life due to
a disability or loss of a loved one, severe pain and emotional
distress. Punitive damages are only awarded in the event of
In one particular circumstance, physicians, particularly psychiatrists
are held to a different standard than other defendants in a
tort claim. Suicide is legally viewed as an act which terminates
a chain of causality. Although the defendant may be held negligent
for another's suicide, he /she is not responsible for damages
which occur after the act. An exception is made for physicians.
Although there exists no protocol or algorithm for predicting
suicidality with any level of certainty, courts throughout the
United States have found physicians to be negligent. Furthermore,
damages are routinely assessed based on losses which would hypothetically
accrue after the act of suicide
can occur in a wide range of accidents; however leading causes
of personal injuries can be attributed to: