medical malpractice

The basic definition of medical malpractice is an intentional abandonment of duty or a failure to exercise a medical skill or learning by a physician rendering their services which results in injury, loss, or damage. It also covers the public perception of adverse events during medicinemedical care. Medical malpractice law is generally defined as those laws having to do with medical malpractice. These laws are different from country to country, and even within those countries.

Trial of claims - Although medical malpractice is most often thought of as applying to physicians, the term includes the medical negligence of any medical care provider, including, for example, dentists, nurses, and therapists. Claims may also be brought against hospitals, clinics, or medical corporations for direct liabiilty or for vicarious liability for the negligence of an employee.In common with other forms of claims for negligence, in order to succeed in a claim (lawsuit) against a provider, the claimant (plaintiff) must successfully demonstrate three things:#That the provider failed in his/her duty of care towards the patient: the provider failed to do something that a reasonably prudent provider in the same field would have done under the same or similar circumstances, or that the provider did something that no reasonably prudent provider in the same field would have done under the same or similar circumstances.#That some harm was caused by this failure to comply with the duty of care, and that the harm risked by such misconduct was reasonably foreseeable at the time.#The amount of damages that would reasonably compensate the plaintiff for the harm caused by the malpractice.In the United Kingdom, a doctor must be shown to have acted in accordance with a reasonable body of medical opinion. This is known as the Bolam Test. In Australia, this test has been replaced.Since most medical providers have malpractice insurance, a case usually begins as an insurance claim, made by the attorney for the patient. If the liability and damages are clear, the case may be settled before suit is filed in court. Otherwise, the plaintiff will file suit in the appropriate court. Between the filing of suit and the trial, the attorneys for the parties will engage in discovery, which includes interrogatories, requests for documents, and Depositiondepositions.At trial, the plaintiff has the Burden of proofburden of proof. Expert witnessExpert witnesses usually are required to testify in malpractice cases. Expert witnesses are permitted to testify as to their opinions, while lay witnesses generally must confine their testimony to things they perceived with their own senses. Witnesses generally are qualified as experts if they have sufficient education, training, and experience in the field and their testimonial opinions would assist the factfinder (judge or jury), in determining a contested issue. The courts generally hold that lay jurors or judges, untrained in medicine, are not adequately equipped to decide whether the doctor deviated from the requisite standards without being guided by expert witnesses in the field. Expert witnesses in some instances may be independent experts from the same field of medicine as the defendant. However, usually the plaintiff and the defendant will each hire their own experts, who will have conflicting opinions. It is up to the factfinder to sort out which opinions to accept.The plaintiff's damages may include compensatory and punitive damages. Compensatory damages include economic and non-economic. Ecomonic 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 claims include damages for physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability, pain and suffering and emotional distress. Punitive damages are rarely awarded in malpractice cases judiciary.house.gov and are subject to strict controls. The factfinder must assess the economic, non-economic and punitive damages.The factfinder will render a verdict to the winning party. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. A plaintiff who is dissatisfied by a small judgment may move for additur. A defendant who is dissatisfied with a large judgment may move for remittitur. However, judges will only rarely disturb the verdict of a jury. Either side may take an appeal from the judgment, but appeals more often than not affirm the judgment of the trial courts.In the United Kingdom medical negligence cases are heard by a judge who decides on questions of fact and law; in other jurisdictions, including the United States the questions of fact may be decided by a judge or jury.

United States political controversy -

History of the insurance debate - Insurance companies set a contract with each medical practice for a calendar year. According to the contract, doctors pay a set “rate” for the entire year. In exchange for paying the set rate for each year, the insurance company will provide a legal defense and indemnification for losses to the doctor or the practice if they are sued. According to the Insurance Information Institute, early in the 1970s, many insurance companies left the business due to the “rising claims and inadequate rates.” Responding to the lack of insurers, many doctor-owned malpractice insurance companies were established to provide affordable coverage. These companies had not experienced deficits and we(re) initially able to charge low rates. As time passed, these doctor-owed insurance companies constantly lost money on patient claims and were forced to increase the rates. Today, nearly fifty percent of medical malpractice insurance companies are doctor-owned and operated.iii.org Insurance rates have continued to increase faster than the rate of inflation, though less rapidly in states that have passed tort reforms; according to the United States Department of Health and Human Services, "malpractice reforms in the 1980s led to a 34% decline in malpractice premiums in those states that enacted reforms compared with states that did not enact reforms."aspe.hhs.gov. The Center for Justice and Democracy released a study arguing that insurance companies have enjoyed increasing profits while medical malpractice claims and payouts remained constant.centerjd.org However, as tort reform advocates noted, the study reached that conclusion by deliberately omitting data from a health insurer, St. Paul, that left the business after a multi-billion dollar loss; when that data is included, the study results in the opposite conclusion: "In failing to take account for the market exit of some of the industry's largest players, mismatching premiums and losses, hand-picking dates to skew results, and painting a deceptive picture of the insurance industry's profitability, CJD's research is at best shoddy and at worst intentionally misleading."pointoflaw.com An October 2005 study by the Health Coalition on Liability and Access found that the CJD study was "critically flawed" and that, once those flaws were fixed, there is "no evidence that medical malpractice insurance is overpriced."hcla.orgEconomistEconomists have recently studied several questions central to the medical malpractice debate. While it has been claimed that excessive jury awards are responsible for increases in malpractice insurance rates, verdicts constitute only 4% of the medical malpractice payouts, with insurance company settlements comprising 96% of the payouts.content.healthaffairs.org The same researchers found that the increases in payouts have been consistent with increases in the costs of health care.content.healthaffairs.org Economists from Dartmouth College and the National Bureau of Economic Research have also found that "increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums," and that "there is little evidence of increased use of many treatments in response to malpracticed liability at the state level, although there may be some increase in screening procedures such as mammography."? saynotocaps.org

Today - There are various bills that have been proposed in the U.S. Congress that would non-economic damages capscap non-economic damages in medical malpractice cases at $250,000, and some proposals have included provisions permitting states to pass legislation that would override such a cap. The Congressional Budget Office estimates that the bill will reduce medical malpractice insurance rates in states that do not have caps by 25-30%.Some within the medical profession, insurance industries, and numerous lawyers and economists argue that the current American medical malpractice litigation system increases the cost of health care and threatens access to health care for all Americans. Supporters of tort reform contend that studies show that very few medical liability lawsuits stem from what they call true malpractice that very few cases of actual malpractice end up in suits, and that malpractice verdicts are just as likely to punish innocent doctors as wrongdoers. They argue that the cost of defensive medicine, in which physicians order tests or treatments or hospitalizations for medico-legal rather than clinical reasons, is as large as $50 billion per year, money that could be better used to improve health care elsewhere. The American Medical Association argues that excessive malpractice liability deters many doctors from practicing, and that the problem is especially acute for obstetricians and neurosurgeons; others dispute this.In response, some consumer groups, patient rights organizations and lawyers who handle medical malpractice claims argue that the quality of health care in the United States of America is among the best in the world, and they contend that this results in part from the ability of citizens to obtain an effective judicial remedy when they are victimized by medical malpractice, and that any extra cost imposed is justified by what they consider the extra benefit. Defenders of the current system claim that there is virtually no frivolous lawsuitfrivolous medical malpractice litigation, because the high cost of pursuing medical malpractice claims, and the alleged reluctance of physicians to testify against their colleagues, forces plaintiffs' lawyers to spend large sums of money to litigate even minor malpractice claims. Bob Herbert, an opponent of tort reform and a columnist for the ''New York Times'', writes: "the problem when it comes to malpractice is not the amount of money the insurance companies are making (they're doing fine) or the rates the doctors have to pay, but rather the terrible physical and emotional damage that is done to so many unsuspecting patients who fall into the hands of careless or incompetent medical personnel....What is needed is a nationwide crackdown on malpractice, not a campaign to roll back the rights of patients who are injured."nytimes.com Herbert's claim that the "insurance companies are doing fine" is directly contradicted, however, by the fact that in 2003 insurance companies had a combined ratio of 137.5, paying out $1.375 in medical malpractice defense costs, judgments, and settlements for every dollar collected in premiums.wwwc.house.gov Herbert's analysis was otherwise heavily criticized by supporters of tort reform as inaccurate in many other respects.pointoflaw.com, pointoflaw.com, pointoflaw.com. There are many other disputes relating to the question of medical malpractice reform; ''see'' tort reform and non-economic damages caps.Common Good (organization)Common Good has proposed creating specialized medical courts to improve the American system; opponents of tort reform object to the idea.legalaffairs.org

References and external links -

General Accounting Office, gao.gov - Medical Malpractice; Implications of Rising Premiums on Access to Health Care August 2003

Department of Health and Human Services, legalreforminthenews.com - "Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs By Fixing Our Medical Liability System", 24 July 2002

American Medical Association, legalreforminthenews.com - "Medical Liability Reform: Stopping the Skyrocketing Cost of Health Care", 17 February 2005

atla.org - Health Care Resource Center, website of Association of Trial Lawyers of America

pointoflaw.com - Point of Law, pro-reform weblog that discusses medical malpractice issues

cgood.org - Common Good

Stephanie Mencimer, washingtonmonthly.com - "Malpractice Makes Perfect", ''Washington Monthly'', October 2003

Insurance Information Institute, iii.org - "Medical Malpractice"

Ted Frank, pointoflaw.com - "Malpractice Myths", ''Point of Law'', 23 February 2005 (pro-reform perspective)

centerjd.org - Center for Justice and Democracy, centerjd.org - Medical Malpractice: Myth vs. Reality July 2002 (pro-status quo perspective)

Public Citizen citizen.org - Medical Malpractice page (pro-status quo perspective)

Amitabh Chandra and Katherine Baicker, National Bureau of Economic Research and Dartmouth College, ? saynotocaps.org - The Effect of Malpractice Liability on the Delivery of Health Care, August 2004med-stub law-stub !de:Kunstfehlerja:医療事故< /text>

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