Medical malpractice law provides a way for patients to recover compensation from any harms resulting from sub-standard treatment. The standards and regulations for medical malpractice differ slightly from country-to-country; even within some countries, jurisdictions may have varying medical malpractice laws.
A hospital, doctor or other health care professional is not liable for all the harms a patient might suffer. They are only legally responsible for harm or injuries that resulted from their deviating from the quality of care that a competent doctor would normally provide in similar situations, and which resulted in harm or injury for the patient.
A team from the University of Illinois reported in Annals of Pharmacotherapy that blood thinners make up about 7% of all medication errors in hospitalized patients. Blood thinners are prescribed to lower the risk of stroke and heart attack by preventing clots from developing in the veins and arteries.
Primary care doctors mainly sued for drug errors and missed diagnoses - researchers reported in BMJ Open that most malpractice suits against primary care doctors in the USA, UK, Australia, France and Canada are for missed diagnoses (mainly related to cancer, heart attack and meningitis) and drug errors.
How common is medical malpractice?Diagnosis errors cause up to 160,000 deaths annually in the USA - making diagnostic errors are one of the most dangerous and expensive mistakes made by American doctors, estimated to cause between 80,000 and 160,000 deaths every year, Johns Hopkins researchers reported in BMJ Quality and Safety (April 2013 issue).
The researchers examined data from over 350,000 malpractice claims in the United States over the last 25 years. They reported that the majority of claims were related to diagnostic errors, and that those errors frequently caused severe patient harm and led to the biggest total payouts.
$38.8 billion were paid out in diagnosis-related payments between 1986 and 2010.
Team leader, David E. Newman-Toker, M.D., Ph.D., said "This is more evidence that diagnostic errors could easily be the biggest patient safety and medical malpractice problem in the United States. There's a lot more harm associated with diagnostic errors than we imagined." According to a HealthGrades Patient Safety In Hospitals Study, about 195,000 patients in the United States die each year from preventable in-hospital medical errors. The authors added that out of 37 million Medicare hospitalizations from 2000 to 2002, there were 1.14 million patient-safety incidents.
There are between 15,000 and 19,000 malpractice suits against US doctors annually.
Researchers from the University of California in San Francisco reported in JAMA (Journal of the American Medical Association) that sexual misconduct and prescribing to patients without any established clinical relationship are among the most common violations of professionalism by physicians in the United States.
A study carried out by a team from St. Michael's Hospital, Canada, reported in the journal Open Medicine that between 2000 and 2009 a total of 606 Canadian doctors were disciplined by the provincial medical licensing authorities. 92% of those disciplined were men who had been practicing medicine for an average of 28.9 years. 99% of them were independent practitioners. The most common violations were sexual misconduct (20%), issues regarding standard of care (19%), and unprofessional conduct (16%). 62% of those who were disciplined were general practitioners, 14% were psychiatrists, and 9% were surgeons.
A 2009 study carried out by researchers from Massachusetts General Hospital (MGH) Department of Medicine found that the majority of American doctors will face a malpractice lawsuit at some time during their professional careers. However, the risk of having to pay out any money to a plaintiff is fairly low.
One in every three hospitalized patients in the USA encounters a hospital error, says a report published in Health Affairs. The University of Utah researchers revealed that errors made in hospitals were ten times more common than experts had thought. Examples of hospital errors included:
- Giving the patient the wrong dosage
- Giving the patient the wrong medication
- Leaving things inside the patient's body after surgery
- Operating on the wrong part of the body
- Persistent back pain after surgery
- Potentially fatal staph infections
- Pressure ulcers (bedsores)
Characteristics for medical malpractice to be consideredAccording to expert malpractice lawyers in the USA, for medical malpractice to be considered, a claim needs to have some broad characteristics:
- Failure to provide a proper standard of care - the law states that there are recognized medical standards by which a health care professional should adhere to when providing care for patients. The medical profession recognizes these standards.
Patients have the right to expect to receive these standards when being treated. If the standard care is seen to be violated, there may have been negligence.
- An injury was the consequence of negligence - a claim cannot be made if the patient feels the doctor or hospital was negligent if it resulted in no harm or injury. The patient has to prove that the negligence caused the injury or harm, and that it would not have occurred had the health care provider or professional not been negligent.
If the patient is not happy with his/her outcome, that in itself is not malpractice. It is only malpractice when it is proven that the negligence caused the harm or injury. An injury with no negligence is not malpractice, and neither is apparent negligence if there is no injury.
- The patient's injury must have very damaging consequences - lawyers say that for a malpractice suit to succeed, the patient has to show that the injury or harm caused by the medical negligence resulted in considerable damages. Lawsuits are very costly to follow through to the end. Examples of considerable damage include suffering, enduring hardship, having to live in constant pain, considerable loss of income, and injury that disabled the patient.
If the injury is minor, the patient will probably spend more on the lawsuit than the eventual money recovered.
Informed consent - if the patient does not give "informed consent" to a medical procedure, the doctor or health care provider may be liable if the procedure results in harm or injury, even if it was carried out flawlessly. For example, if a surgeon did not inform the patient that a surgical procedure had a 30% risk of losing a limb, and that patient lost a limb, the doctor would be liable, even if the operation was done perfectly, because the patient may have opted not to go ahead if he/she had been informed of the risks.
A study led by Harvard Medical School researchers revealed that a sizeable minority of practicing doctors do not think patients should always be told the whole truth.
The elements in a malpractice caseThe plaintiff - this is the patient, a legally designated person who acts on the patient's behalf, or if the patient died, the executor/administrator of the patient's estate. In legal terminology, the plaintiff is the person who brings a case against another in a court of law, the person who initiates the suit, the one who is suing.
The defendant - this is the party who is being sued. In a medical malpractice suit it is the health care provider, this could be the doctor, nurse, therapist - any medical provider. Even those who were "following orders" may be liable for negligent acts.
The prevailing party - this is the party who wins the case; it might be the plaintiff or the defendant. If the defendant wins the case, the plaintiff has lost and will receive no compensation.
The losing party - the party who loses the case; the opposite of the prevailing party.
The fact-finder - the judge or jury.
The plaintiff has to prove that the four elements of the tort of negligence existed in order to succeed in a medical malpractice claim:
- A duty was owed by the health care provider or hospital.
- A duty was breached - the health care provider or hospital did not conform to the expected standard of care
- The breach resulted in an injury - the breach was closely linked to the injury
- Damage - the patient suffered considerable damage, either physical, emotional or pecuniary (financial).
The burden of proof is on the plaintiff, who has to prove compellingly that the defendant was negligent. In most trials, both the defendant and plaintiff will present experts to explain what standard care was required. The fact-finder must then consider all the evidence and decide which party is the most credible.
A verdict will be rendered by the fact-finder for the prevailing party. If it is the plaintiff, the judge will then decide on damages.
The losing party may move for a new trial. In some courts, if the plaintiff wants a larger settlement, they may move for additur (assess the damages and award a larger amount). If the defendant is dissatisfied with a large judgment, they may move for remittitur (for the court to reduce the amount of damages). Either party may take an appeal from the judgment.
Compensatory and punitive damagesThe plaintiff may be awarded compensatory and punitive damages.
Compensatory damages - may include economic damages, including lost earning capacity, life care expenses, and medical expenses. Usually past and future losses are assessed. Compensatory damages may also include non-economic damages, which assesses the injury itself, psychological and physical harm, such as losing one's vision or legs, extreme pain, and emotional distress.
Punitive damages - these are only awarded if the defendant is found guilty of malicious or willful misconduct. Punitive damages is a form of punishment; compensation in excess of actual damages.
The effect of malpractice suits on doctorsMalpractice suits against surgeons in the USA are common, and can have a profound impact on the surgeon's wellbeing, resulting in stress, professional dissatisfaction and emotional exhaustion, a study revealed. The study, which was published in the Journal of the American College of Surgeons, November 2011 issue, found that lawsuits were strongly and independently associated with surgeon depression and career burnout.
The authors wrote that surgeons who had gone through a recent malpractice lawsuit were more likely to be dissatisfied with their careers, and would probably advise their children and others to pursue on-surgical or non-medical careers.
How should doctors deal with complaints?The Medical Defence Union, which is the UK's leading medical defence organization, has these tips for UK doctors on responding to complaints:
- Investigate all complaints thoroughly. Talk to whoever is complaining about what concerns them, and what outcome they are expecting. Have a clear plan in place, and tell the complainant how long the investigation will take and when they should expect a response.
- Invite the complainant(s) to talk to the staff who are involved in the complaint. Possibly seek the help of a conciliator.
- Take the concern seriously, take measures to make sure they do not occur again. Make sure your response is appropriate and balanced.
- Remaining objective is vital. The reviewer should ideally be directly involved in the complaint, but should not be the person the complainant has a problem with. If appropriate, seek out an independent clinical opinion (make sure the complainant is happy with that)
- Apologize where appropriate, be open and honest, and acknowledge any errors and distress caused
- Set up a system which reviews and learns from complainants. Make sure the complainant is told of every action you are taking.