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The Present System For Medical Liability

The liability system has two ostensible goals: to compensate the negligently injured, and to deter negligent behavior. In health care, the tort system allows individuals who are injured through the negligence of their health care provider to seek compensation through litigation. In theory, negligent behavior is deterred by making the negligent party bear the burden of the award.

Medical malpractice claims are mainly initiated in state courts. Although laws vary by state, in general the legal standard for malpractice has four elements:

The presence of a physician-patient relationship that establishes the duty of care

An adverse outcome (actual injury or harm)

Negligence by the provider (failure to meet the standard of care)

Direct causality between the negligence and the adverse outcome

In the context of medical malpractice, negligence depends on “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” For doctors and other health care providers, this standard means that doctors should provide the level and type of care that is customary and usual in the medical community or in their specialty field.

The most common claim for medical harm is the medical malpractice claim, which applies directly to the negligent physician. However, medical malpractice is not the only legal option available to claimants seeking redress for damages.3 Physicians are also open to claims of intentional torts. Medical device and pharmaceutical manufacturers can be sued under such legal doctrines as product liability, negligence, strict liability and breach of warranty. Hospitals and managed care organizations, which may be exempt from many malpractice claims, can be sued under the principles of vicarious liability, joint and several liability and corporate negligence.

Extent of Medical Malpractice
The best estimates on the frequency of malpractice are based on two separate large-scale studies of hospitalizations, one in New York and the other in Colorado and Utah. Although the studies were done nearly a decade apart, they revealed remarkable similarities in the pattern of malpractice claims. In the New York study, based on 1984 data, 1.0 percent of hospitalizations.

Did You Know?

12,000 deaths/year from unnecessary surgery

7,000 deaths/year from medication errors in hospitals

20,000 deaths/year from other errors in hospitals

80,000 deaths/year from nosocomial infections in hospitals

"Statutes of limitation" govern the length of time one has to file a lawsuit or be forever barred from pursuing such claim.

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