Medical malpractice/negligence

Medical malpractice refers to professional negligence by act or omission by a health care professional in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient.

A small group of physicians accounts for a disproportionately large share of all malpractice claims and patient complaints.

Physicians are sued for negligence more than any other professional group: because medical care is intrinsically hazardous and frequently leads to bodily harm.

In 2016 malpractice claims evaluated over a ten-year period estimated that 1% of physicians accounted for nearly 1/3 of the claims and that 94% of the positions had none.

Approximately 195,000 people are killed every year by medical errors in the US.

15 diseases are responsible for more than half of the cases of missed diagnosis, including: stroke, sepsis, pneumonia,venous, thromboembolism, and lung cancer-accounting for about 40% of diagnostic error related harms.

There are more than 1 billion healthcare visits each year in the US and less than a 0.1% chance of experiencing severe harm from missed diagnosis.

To establish a negligence claim plaintiffs prove that the defendant of them of duty of care, the defendant breach that duty, and the breach result in injury to the plaintiff.

Estimated 1.14 million patient-safety incidents occurred among the 37 million hospitalizations in the Medicare population over the years 2000-2002.

Between 15,000 and 19,000 malpractice suits are brought against doctors each year.

Malpractice claims may also be brought against hospitals, clinics, managed care organizations and medical corporations for the mistakes of their employees.

All four elements of the tort of negligence for a successful medical malpractice claim must be accomplished.

They are: A duty was owed, a duty was breached, the breach caused an injury, and the breach of duty was a proximate cause of the injury, and damages occurred.


Most claims never go to trial, and in those that do, the defense is more likely to win. 



According to data from the National Practitioner Data Bank, medical malpractice payments have consistently been dropping since 2001. 



In order for a plaintiff to win a medical malpractice case, they need to be able to prove 4 elements:



A duty of care owed to the patient.



A breach of that duty.



Injury resulting from the breach.



Damages as a result of the injury.



Without all 4 of these elements, a medical malpractice case will fail.



A duty of care owed to the patient



A breach of that duty



Injury resulting from the breach


Damages as a result of the injury



Without all 4 of these elements, a medical malpractice case will fail.


Without damage there is no basis for a claim, despite the presence of negligence.

Damage can occur without negligence.

Process of medical malpractice does a poor job of promoting the interests of positions with patients and does not improve patient outcomes.

Lawsuits are filed in a court with appropriate jurisdiction.

Following the filing of suit and before a trial, the parties are required to share information through discovery via interrogatories, requests for documents and deposition.

Cases may be settled pre-trial on negotiated terms.

If the parties cannot agree, the case will proceed to trial.

At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues.

Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent.

An expert in a medical malpractice case, must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court.

Medical negligence occurs with provision of sub-standard care, by not providing the type and level of care that a prudent, local, similarly-skilled and educated doctor would provide in similar circumstances.

The 4 basic requisite elements of a medical malpractice case include: a duty of care owed by a doctor to a patient, a breach of that duty,meaning falling below the requisite standard of care, causation, meaning a direct cause between the patient’s injuries and the medical professional’s breach of duty, and damages meaning actual harm.

Negligence may include failure to diagnose, failure to properly advise of the serious risks of treatments, and unacceptable errors during the performance of surgery and other procedures.

Recklessness occurs when a physician’s actions are so far below the accepted norm, that the patient is placed in serious risk of suffering significant harm.

Medical negligence becomes medical malpractice when the doctor’s negligent treatment causes undue injury to the patient, makes the patient’s condition worse, causes complications, or necessitates additional medical treatment.

Legal causation and damages are necessary before medical negligence will give rise to a viable medical malpractice lawsuit.

If a doctor’s medical negligence does not result in patient harm, or damages, a medical malpractice claim will fall short.

Estimate that physicians operating on bilateral structures have a 25% lifetime risk of performing the wrong site surgery and that one in 8000 inpatient operations have a retained surgical item.

Many states require that a certificate of merit before a malpractice lawsuit be filed which requires a report from a medical physician that the physician accused of negligence breached the standard of care and caused injury to the patient.

Damages may include compensatory and punitive damages.

Compensatory damages are both economic and non-economic.

Economic damages include financial losses such as lost wages, lost earning capacity, medical expenses and life care expenses.

Damages may be assessed for past and future losses.

Non-economic damages are assessed for the injury itself: physical and psychological harm, reduced enjoyment of life due to a disability, loss of a loved one, severe pain and emotional distress.

Punitive damages are only awarded in the event of wanton and reckless conduct.

Medical malpractice lawsuit must be filed within time limits set by statute in state law and vary per jurisdiction and type of malpractice.

The vast majority of malpractice claims do not lead to any indemnity payments.

More than 70% of settled malpractice claims involve medical error.

Most claims without error are denied compensation.

Negligence claims occurring against hospitals produce a greater percentage of severe outcomes,

No single medical process is associated with more than five percent of negligence claims.

Approximately one-third of all claims are the result of misdiagnosis.

Misdiagnosis harms are concentrated in vascular events, infections, and cancers.


Nearly 1 in 10 patients with symptoms of major vascular events, infections, or cancers will be misdiagnosed.



Missed vascular events, infections, and cancers account for approximately 75% of serious harms from diagnostic errors. 



In 28 published studies involving 91,755 total patients, diagnostic error rates ranged from 2.2% (myocardial infarction) to 62.1% (spinal abscess), with an aggregate mean of 9.7%.



Rates of serious misdiagnosis-related harms per incident disease case ranged from 1.2% (myocardial infarction) to 35.6% (spinal abscess, with an aggregate mean of 5.2%.



It is estimated by some experts that one in 10 patients with a serious disease is misdiagnosed, and roughly half of those misdiagnosed die or are permanently disabled as a result.

Diagnostic errors are the most common, most catastrophic, and most costly medical errors.

Cancers, infections, and vascular events account for about 75% of the serious harms from diagnostic error.

Diagnostic errors account for 34% of all medical errors that cause serious harm.

64% of diagnostic errors lead to death or permanent disability.

Diagnostic errors account for 28% of all payouts for medical malpractice claims.

It is estimated that malpractice claims represent just 1.5% of medically negligent care events.

Estimates combining autopsy-detected error rates and total hospital deaths suggest perhaps 40,000–80,000 misdiagnosis-related deaths in US hospitals annually.

Estimates suggest that serious morbidity is at least as common as death, translating to roughly 80,000–160,000 serious misdiagnosis-related harms each year.

In primary care alone, it is estimated that 12 million Americans suffer a diagnostic error each year.

Such diagnostic errors result in serious permanent damage or immediate or subsequent death.

Attributable deaths from multiple systematic reviews of autopsy studies indicate that the proportion of deaths due to errors is close to 5–10%.

Patients desire a detailed account when an error occurs, as to why it happened, who takes responsibility for the error, and how such errors can be prevented.

Patients more likely to seek counsel to explore their legal rights in the absence of an explanation or apology.

Reluctance to disclose a medical mistake is one of the reasons for the surge in litigation and settlement expenditures seen in the past two decades.

Malpractice legislation has not changed intensity of practice, as measured by imaging rates, average charges, or admisission rates (Waxman DA et al ).

In a study of 4294 obstetricians, nearly 73.6% reported being named in the malpractice lawsuit.

Obstetric cases have higher indemnity payments and higher paid-to-close ratios than other medical malpractice cases.

The medical liability system is intended to: compensate patients injured by negligence, promote corrective justice by providing a mechanism to rectify wrongful losses by defendants, and to deter negligence.

The tort system performs poorly as a means of providing patient with compensation for injuries related to negligence, and rarely provides meaningful corrective justice.

Defensive medicine is costly and provides a little or no clinical benefit.

Most studies find no association between the greater risk of malpractice liability and healthcare quality.

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