Medical Malpractice

THE ISSUE OF medical malpractice has been a hot-button issue for politicians at both the federal and state levels since the mid-1970s. Liberals insist that plaintiffs who suffer at the hands of incompetent or neglectful medical personnel should be allowed to recover full damages, that unrestricted damages serve to promote accountability among the medical profession, and that juries should be free to respond to cases on an individual basis.

Conservatives counter with the claim that too many medical lawsuits are frivolous, that juries are more likely to favor plaintiffs than defendants, and that large jury awards are detrimental to business interests. Neither side contests the reality of the problems that exorbitant medical malpractice insurance rates have caused for the medical community, and both sides take it as given that rates for medical malpractice insurance will rise in relation to the amount of damages awarded in medical malpractice lawsuits.

In medical malpractice cases, the assumption is that a doctor, nurse, hospital, mental health professional, or other medical personnel has committed a wrongful act. In some cases, the plaintiff is able to prove negligence on the part of medical personnel through documenting that an act, a refusal to act, or a breach of duty resulted in injury. Other malpractice suits are brought on the grounds that a procedure was performed without the informed consent of the patient or the patients authorized representative or that a patient was abandoned before the professional relationship was terminated. An incident in which a patient's right to privacy is breached by releasing medical records to unauthorized third parties may also constitute grounds for medical malpractice. Patients may also file a breach of conduct malpractice lawsuit if a medical practitioner promises a certain result but does not produce it. For example, a botched nose surgery by a plastic surgeon could provide grounds for a breech of conduct malpractice suit.

The burden of proof in a medical malpractice suit is always on the plaintiff, and the plaintiff must show a clear relationship between the action of the medical practitioner and the damage suffered. Two tests are frequently used to document cause and effect in medical malpractice suites: The “but for” test must establish that the injury to the patient would not have happened but for the actions of the medical practitioner.

The “substantial factor” test is used to show that the defendant's actions were substantially responsible for the injury to the patient. The plaintiff's lawyer may call on expert witness to explain the normal course of care for a particular patient and how that care was violated in some way. The expert witness is also used to document the extent of a patient's injury.

Damages may be awarded in three categories: compensatory damages, punitive damages, and nominal damages. Compensatory damages are based on actual harm suffered, medical expenses, lost earnings, and pain and suffering. Punitive damages are aimed at punishing reckless, grossly negligent, or intentional actions that cause damage. Nominal damages are awarded to show that a patient had a legitimate complaint but that no substantive damages were inflicted.

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