Medical malpractice

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Medical malpractice
Legal cause of action

Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury or death to a patient.¹ The negligence might arise from errors in diagnosis, treatment, aftercare or health management.

An act of medical malpractice usually has three characteristics. Firstly, it must be proven that the treatment has not been consistent with the standard of care, which is the standard medical treatment accepted and recognized by the profession. Secondly, it must be proven that the patient has suffered some kind of injury due to the negligence. In other words, an injury without negligence or an act of negligence without causing any injury cannot be considered malpractice. Thirdly, it must be proven that the injury resulted in significant damages such as disability, unusual pain, suffering, hardship, loss of income or a significant burden of medical bills.²

Medical malpractice law

In common law jurisdictions, medical malpractice liability is normally based on the tort of negligence.³

Although the law of medical malpractice differs significantly between nations, as a broad general rule liability follows when a health care practitioner does not show a fair, reasonable and competent degree of skill when providing medical care to a patient.³ If a practitioner holds himself out as a specialist a higher degree of skill is required.³ Jurisdictions have also been increasingly receptive to claims based on informed consent, raised by patients who allege that they were not adequately informed of the risks of medical procedures before agreeing to treatment.³

As law varies by jurisdiction, the specific professionals who may be targeted by a medical malpractice action will vary depending upon where the action is filed. Among professionals that may be potentially liable under medical malpractice laws are:

Physicians, surgeons, psychiatrists and dentists.⁴
Nurses, midwives, nurse practitioners, and physician assistants.⁵
Allied health professionals – including physiotherapists, osteopaths, chiropractors, podiatrists, occupational therapists, social workers, psychologists, pharmacists, optometrists and medical radiation practitioners.⁶⁷

Among the acts or omissions that may potentially support a medical malpractice claim are the failure to properly diagnose a disease or medical condition, the failure to provide appropriate treatment for a medical condition, and unreasonable delay in treating a diagnosed medical condition. In some jurisdictions a medical malpractice action may be allowed even without a mistake from the doctor, based upon principles of informed consent, where a patient was not informed of possible consequences of a course of treatment and would have declined the medical treatment had proper information been provided in advance.⁸

In many jurisdictions, a medical malpractice lawsuit is initiated officially by the filing and service of a summons and complaint. The parties subsequently engage in discovery,³ a process through which documents such as medical records are exchanged, and depositions are taken by parties involved in the lawsuit. A deposition involves the taking of statements made under oath about the case. Certain conversations are not discoverable due to issues of privilege, a legal protection against discovery,⁶ but most conversations between the parties and witnesses are discoverable.

Consequences

Consequences for patients and doctors vary by country.

A no-fault system may provide compensation to people who have medical outcomes that are significantly worse than would be anticipated under the circumstances,⁹ or where there is proof of injury resulting from medical error,¹⁰ without regard to whether or not malpractice occurred. Some no fault systems are restricted to specific types of injury, such as a birth injury or vaccine injury.¹¹

Demography

Medico-legal action across multiple countries is more common against male than female doctors (odds ratio of 2.45).¹² A 2016 survey of US physicians found that 8.2 percent of physicians under the age of forty reported having been sued for malpractice during their careers, with 49.2 percent of physicians over the age of 54 reporting having been sued.¹³

Worldwide

Colombia

In Colombia medical malpractice is regulated by Article 2341 of the Civil Code. To succeed in a claim the patient must prove three elements: the medical error, the damage suffered, and the causal link between them. It is not enough to prove only the error or only the damage — both must be demonstrated together. Negligence is not presumed.

Canada

In Canada, all provinces except Quebec base medical malpractice liability on negligence, while Quebec follows a civil law system.¹⁴

Germany

Patients injured by medical negligence may bring a private action against the provider in contract, tort, or both.¹⁵

Sweden

Sweden has implemented a no-fault system for the compensation of people injured by medical treatment.³¹⁶ Patients who want to bring malpractice claims may choose between bringing a traditional tort claim or a no fault claim.⁹

New Zealand

In New Zealand, the Accident Compensation Corporation provides no-fault compensation for victims.⁹

United Kingdom

The Supreme Court of the United Kingdom decided in 2018 that the duty of care extended to information given to patients by clerical staff of a healthcare provider, such that a medical negligence case might be predicated upon an administrative mistake. A patient at Croydon Health Services NHS Trust's emergency department had severe brain damage having been given information by staff at reception. He was told that he would be seen by a doctor in four or five hours and left the hospital, when actually he would be seen inside 30 minutes by a triage nurse.

References

1"Proving a Medical Malpractice Case I – Proving Negligence (Part II)". Physician's Weekly. April 20, 2017. Retrieved December 13, 2017.
2"What is Medical Malpractice?". American Board of Professional Liability Attorneys. Retrieved March 5, 2021.
3Marcus P (1981). "Book Review of Medical Malpractice Law: A Comparative Law Study of Civil Responsibility Arising from Medical Care". Hastings International and Comparative Law Review: 235–243. Retrieved June 12, 2017.
4Frierson, Richard L.; Joshi, Kaustubh G. (November 6, 2019). "Malpractice Law and Psychiatry: An Overview". Focus (American Psychiatric Publishing). 17 (4): 332–336. doi:10.1176/appi.focus.20190017. ISSN 1541-4094. PMC 7011304. PMID 32047377.
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Disability
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Physiological damage to an organism
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Type of unpleasant bodily feeling
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Income
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Damage
Change in a thing that degrades it away from its initial state
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Medical malpractice law

Consequences

Demography