Medical Malpractice

Death is a normal and inevitable part of the human experience. Under the physician's hand, death is a regular occurrence, as these practitioners strive to ward it off for us, for example, in critical care surgery. It is physicians who certify death, and their close relationship to this final stage of the human experience contributes to their status. However, death by a physician's hand, due to negligence, strikes at the heart of the Hippocratic oath: “first, do no harm.” An instance in which a physician causes injury or death to a patient through negligent behavior is called medical malpractice. Negligence is action that fails to follow acceptable standards of practice. Estimates of deaths resulting from negligence are unreliable, ranging from the low thousands to the high hundreds of thousands per year, depending on who is counting and how broadly negligence is defined. Malpractice is consequential not only for the welfare of patients, but also for the professional status of physicians and the trust the public bestows upon them. Medical injuries, medical errors, negligence, and malpractice claims are complex phenomena, involving the legal tort system, the economics of health and liability insurance industries, the risk-management industry, consumerism, the patient-doctor relationship, the status of health professions, political stakeholders, the welfare of the population, and the ambiguities of death and dying.

Distinguishing Negligent from Normal Injury and Death

Medical malpractice claims arise from adverse health outcomes that occur under the care of a physician. If a physician is negligent but causes no injury, then there will likely be no claim. It is the effects of injury, including psychological injury to survivors of a wrongful death, that serves as the basis for monetary settlements. When an injury occurs, a malpractice claim is an assertion that it was caused by misdiagnoses, poor mastery of treatment standards, or observable practitioner error. However, medical complexity and uncertainty make establishing negligence difficult. Deaths and injury (e.g., the surgeon's cut) are a normal part of medical practice and life. Less than 20#x0025; of malpractice claims are res ipsa loquitur cases, those that “speak for themselves,” such as mistaken amputation of a healthy limb. In the remaining cases, it is difficult to discern a normal adverse event from preventable medical error. This ambiguity leaves the process of determining what really caused an adverse outcome to variable interpretations. As a result, stakeholders other than doctors have a say in constructing and interpreting the facts within the context of an adversarial civil law (or tort) system. Especially for an untimely death (e.g., an infant), aggrieved survivors may seek justice for economic and psychological costs. Medical uncertainty means that negligence is continuously redefined in the evolution of tort law as well as in the medical arena itself.

Medical uncertainty is reflected in summary statistics on the incidence of avoidable medical injuries, adverse outcomes, medical errors, and malpractice claims. Data on malpractice claims (legal facts) and medical error (a frequently ambiguous assessment) are skewed by assorted stakeholders, including claimants, defendants, physicians, hospitals, trial lawyers, medical liability insurance companies, and patient advocacy groups, all of whom use different operational definitions of injury and negligence. Physician estimates focus on res ipsa loquitur cases and exclude systemic errors, such as poor infection control in hospitals. Their estimates of malpractice-caused deaths per year are in the low thousands (e.g., 6,000–12,000). Estimates by legal interests define practitioner-caused mortality broadly and include systemic errors. Their estimates are as high as 780,000, about one-third of all deaths, making medical errors and negligence a top-three cause of death. Even objective researchers must make assumptions that favor one or another stakeholder. Statistical analysis of malpractice is complicated further by varied litigation processes; distinguishing injuries and adverse outcomes, claims, and lawsuits; active and disposed cases; out-of-court settlements and jury verdicts; and jury and actual monetary awards. These legal processes vary somewhat by state and court jurisdiction. [Page 706]Regardless of a claim's resolution, real negligence may or may not have occurred. Nonetheless, claims data are posed as indicators of the occurrence of malpractice.

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