Tort law II
Part of the common law series
Negligent torts
Negligence  · Negligent hiring
Negligent entrustment  · Malpractice
Negligent infliction of emotional distress
Doctrines affecting liability
Duty of care  · Standard of care
Proximate cause  · Res ipsa loquitur
Calculus of negligence  · Eggshell skull
Vicarious liability  · Attractive nuisance
Rescue doctrine  · Duty to rescue
Comparative responsibility
Duties owed to visitors to property
Trespassers  · Licensees  · Invitees
Defenses to negligence
Contributory negligence
Last clear chance
Comparative negligence
Assumption of risk  · Intervening cause
Strict liability
Ultrahazardous activity
Product liability
Nuisance
Other areas of the common law
Contract law  · Property law
Wills and trusts
Criminal law  · Evidence

Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. Simply put, medical malpractice is professional negligence (by a healthcare provider) that causes an injury. Image File history File links Scale_of_justice. ... Tort is a legal term that means civil wrong, as opposed to a criminal wrong. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... In tort law, the right to sue and recover damages from another on the basis of negligence, as opposed to numerous other tort theories discussed elsewhere, is based upon proving that the defendant failed to use ordinary care, that is,that degree of care for the protection of the person... Negligent hiring is a cause of action in tort law that arises where one party is held liable for negligence because they placed another party in a position of authority or responsibility, and an injury resulted because of this placement. ... Negligent entrustment is a cause of action in tort law that arises where one party (the entrustor) is held liable for negligence because they negligently provided another party (the entrustee) with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality. ... In law, malpractice is type of tort in which the misfeasance, malfeasance or nonfeasance of a professional under a duty to act fails to follow generally accepted professional standards. ... The tort of negligent infliction of emotional distress (NIED) is a controversial legal theory and is not accepted in many United States jurisdictions. ... In law, a duty of care is the legal requirement that a person exercise a reasonable standard of care to prevent injury of others. ... In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care. ... In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. ... Res ipsa loquitur is a legal term from the Latin meaning literally, The thing itself speaks but is more often translated The thing speaks for itself. The doctrine is applied to tort claims which, as a matter of law, do not have to be explained beyond the obvious facts. ... In the United States, the calculus of negligence or learned hand rule is a term coined by Judge Learned Hand and describes a process for determining whether a legal duty of care has been breached (see negligence). ... The eggshell skull rule (or thin-skull rule) is a legal doctrine used in both tort law and criminal law that holds an individual liable for all consequences resulting from their activities leading to an injury to another person, even if the victim suffers unusual damages due to a pre... Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate and can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory... Under the attractive nuisance doctrine of the law of torts, a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children, who are unable to appreciate the... The rescue doctrine of the law of torts holds that, where a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue... A duty to rescue is a concept in the law of torts that arises in a narrow number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party in peril. ... Comparative responsibility is a doctrine of tort law that compares the fault of each party in a law suit for a single injury. ... In the law of torts, property, and criminal law a trespasser is a person who is trespassing on a property, that is, without the permission of the owner. ... A licensee is a term used in the law of torts to describe a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter. ... An invitee is a term used in the law of torts to describe a person who is on the property of another because that property owner has chosen to hold the property open to some portion of the general public, because the owner of the property has allowed the licensee... Contributory negligence is a common law defence to a claim or action in tort. ... The last clear chance is a doctrine in the law of torts that is employed in contributory negligence jurisdictions. ... Comparative negligence is a system of apportioning recovery for a tort based on a comparison of the plaintiffs negligence with the defendants. ... Insert non-formatted text here Assumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity participated in. ... An intervening cause is a potential defense to the tort of negligence, if it is an unforseeable, and therefore superseding intervening cause, rather than a foreseeable intervening cause. ... Strict liability is a legal doctrine in tort law that makes a person responsible for the damages caused by their actions regardless of culpability (fault) or mens rea. ... An ultrahazardous activity in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person, even if the person engaged in the activity took every reasonable precaution to prevent others... Product liability encompasses a number of legal claims that allow an injured party to recover financial compensation from the manufacturer or seller of a product. ... Nuisance is a common law tort. ... A contract is a legally binding exchange of promises or agreement between parties. ... Property law is the area of law that governs the various forms of ownership in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. ... The law of evidence governs the use of testimony (e. ...

In the United States and other countries, a specific medical malpractice law has developed. In English law, the issue of liability is a subset of professional negligence where, under the Bolam Test, a doctor will be liable unless shown to have acted in accordance with a reasonable body of medical opinion. In Australia, this test has been replaced but the principles are comparable. English law is a formal term of art that describes the law for the time being in force in England and Wales. ... In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. ... The Bolam Test In Sidaway v Governors of Bethlem Royal Hospital, Lord Scarman said: The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion...

The medical malpractice claim

The parties

The plaintiff is the patient, a legally designated party acting on behalf of the patient, or by the executor or administrator of a deceased patient's estate (in the case of a wrongful death suit). A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ...

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. 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. A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate and can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory...

Elements of the case

A plaintiff must establish all four of the following elements, for a successful medical malpractice claim.^[1] A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ...

1. A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
2. 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 doctrine of res ipsa loquitor or 'the thing speaks for itself').
3. The breach caused an injury -- The breach of duty was a proximate cause of the injury.
4. 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.

This can be a disputable topic. ... In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care. ... Res ipsa loquitur is a legal term from the Latin meaning literally, The thing itself speaks but is more often translated The thing speaks for itself. The doctrine is applied to tort claims which, as a matter of law, do not have to be explained beyond the obvious facts. ... In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. ...

The trial

Like all other tort cases, the plaintiff (or the plaintiff's attorney)files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties (or their attorneys) are required to 'share information' through a process known as discovery. Such information includes interrogatories, requests for documents, and depositions. If both parties agree, the case may be settled early on negotiated terms. If the parties cannot agree, the case will proceed to trial. A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ... In law, jurisdiction (from the Latin jus, juris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area... In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for... In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of evidence and help to determine in advance what facts will be presented at any trial in the case. ... Deposition is a word used in many fields to describe different processes: In law, deposition is the taking of testimony outside of court. ...

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 during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible. In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. ...

The factfinder will render a verdict for the prevailing party, and asseses the compensatory and punitive 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. In law, a verdict indicates the judgment of a case before a court of law. ... A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ... A remittitur is a ruling by a judge (usually upon motion to reduce or throw out a jury verdict) lowering the amount of damages granted by a jury in a civil case. ... It has been suggested that Mandate (law) be merged into this article or section. ...

Expert testimony

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. Expert testimony is not qualified "just because somebody with a diploma says it is so" (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliabilty. In the United States, two models for evaluating the proposed testimony are used: An expert witness is a witness, who by virtue of education, or profession, or experience, is believed to have special knowledge of his subject beyond that of the average person, sufficient that others may officially (and legally) rely upon his opinion. ... Precedent is the principle in law of using the past in order to assist in current interpretation and decision-making. ...

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 cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]. Before the trial, a Daubert hearing^[2]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." (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes: The Daubert Standard is a legal precedent set in 1993 by the Supreme Court of the United States regarding the admissibility of expert witnesses testimony during legal proceedings. ...

• Whether a "theory or technique . . . can be (and has been) tested"
• Whether it "has been subjected to peer review and publication".
• Whether, in respect to a particular technique, there is a high "known or potential rate of error"
• Whether there are "standards controlling the technique's operation".

Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule's incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert. The Federal Rules of Evidence (FRE) are the rules that govern the admissibility of evidence in the United States federal court system. ...

In view of Daubert and Kuhmo, the pre trial preparation of expert witnesses is critical. ^[3]

Damages

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 wanton and reckless conduct. In law, damages refers to the money paid or awarded to a claimant (as it is known in the UK) or plaintiff (in the US) following their successful claim in a civil action. ... Punitive damages are damages awarded to a successful plaintiff in a civil action, over and above the amount of compensatory damages, to: punish the conduct of the civil defendant; deter the civil defendant from committing the invidious act again; and deter others from doing the same thing. ...

Statistics on malpractice and preventable medical error

Main article: Medical error

Medical malpractice claims can help identify areas where primary health care in the United States needs improvement, according to the American Academy of Family Physicians. The Academy refers to a study entitled "Learning from Malpractice Claims about Negligent, Adverse Events in Primary Care in the United States", in suggesting that the medical community can learn from tort claims. In that study, researchers looked at primary care malpractice claims settled between 1985 and 2000 in the United States. The study focused on a subset of 5,921 claims that were clear errors. The researchers found: This article needs to be cleaned up to conform to a higher standard of quality. ...

• 68 percent of the errors were in outpatient settings and resulted in more than 1,200 deaths.
• Negligence was more likely to have severe outcomes when they occurred in hospitals, but the total number of high severity outcomes and death was larger in the outpatient setting.
• Of the 10 most prevalent medical conditions with error-related claims, no single condition accounted for more than five percent of all negligent claims.
• Diagnostic error accounted for more than one-third of the claims.^[4]

A recent study by Healthgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic. ^[5] HealthGrades (NASDAQ: HGRD), incorporated in December 1995, provides objective ratings of hospitals, nursing homes and home health agencies in the United States. ... As a general acceptance, a medical error occurs when a health-care provider chose an inappropriate method of care or the health provider chose the right solution of care but carried it out incorrectly. ...

A 2006 follow-up to the 1999 Institute of Medicine of the National Academies study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million -- and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.^[6]

Criticism of Medical Malpractice Lawsuits

Some doctors' groups and insurance companies have criticized medical malpractice litigation, claiming the process is expensive, adversarial, unpredictable, and inefficient. They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12% percent annually since 1975.^[7], and an estimated 60% of malpractice lawsuit expenses are now consumed by administrative, or transaction, costs (eg, lawyer fees, expert witness charges, court costs), as compared with 25% to 30% for systems such as workers' compensation. Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000.

These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems.^[8] Not everyone agrees, though, that medical malpractice lawsuits are solely causing these rate increases. A 2003 report from the General Accounting Office found multiple reasons for these rate increases, only one of which was medical malpractice lawsuits.^[9] The Government Accountability Office (GAO) is the audit, evaluation, and investigative agency of the United States Congress. ...

Tort reform advocate Common Good has proposed creating specialized medical courts (similar to existing administrative tax or workmen's comp court proceedings) where medically-trained judges would evaluate cases and subsequently render precedent-setting decisions. Proponents believe that giving up jury trials and scheduling noneconomic damages such as pain and suffering would lead to more people being compensated, and to their receiving their money sooner. Other tort reform proposals, some of which have been enacted in various states, include placing limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates.^[10] Tort reform is the phrase used by its advocates who claim it is a change in the legal system to reduce litigations alleged adverse effects on the economy. ...

In contrast, trial lawyers have asserted that the medical malpractice crisis is a myth. In May 2006, the study "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation" was released by the Harvard School of Public Health. This study supported a trial lawyer position that in most cases the claimants were entitled to compensation. According to the study, "the vast majority of expenditures go toward litigation over errors and payment of them." ^[11][12] Harvard School of Public Health The Harvard School of Public Health (HSPH) is Harvard Universitys School of Public Health. ...

References