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Malpractice In law, malpractice is a type of negligence in, which the professional under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers harm. It is committed by a professional or her/his subordinates or agents on behalf of a client or patient that causes damages to the client or patient. Medical Malpractice Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice. A doctor would be liable for (depending on the circumstances) such things as prescribing experimental drugs and performing cosmetic surgery. The party The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or - in the case of a wrongful-death suit - the executor or administrator of a deceased patient's estate. 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. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), "following orders" may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, which was found in the case of Dany Decell, CEO, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees. Elements of the case A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.
The trial Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and deposition. If both parties agree, the case will proceed to trial. The plaintiff has the burden of proof to prove all the elements by a preponderance of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible. The fact-finder will render a verdict for the prevailing party. If the plaintiff prevails, the fact-finder will assess damages within the parameters of the judge's instructions. The verdict is then reduced to the judgement of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgement may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgement may move for remittitur. Either side may take an appeal from the judgement. 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 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 reliability. In the United States, two models for evaluating the proposed testimony are used: 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 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:
since 1975. 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. 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, with medical malpractice lawsuits being the primary driver. Despite noting multiple reasons for rate increases, the report goes on to state that the "GAO found that losses on medical malpractice claims-which make up the largest part of insurers' costs-appear to be the primary driver of rate increases in the long run." The major tort reform proposals have been: 1. Special medical malpractice courts 2. Limits on noneconomic damages 3. Reduction in the statute of limitations of action At the same time, studies of these claims have found that there is no problem of increasing malpractice verdicts and insurance costs driving doctors out of business.
The case for medical liability reform Proponents of medical liability reform argue that medical malpractice lawsuits restrict patient access to health care by driving physicians out of business or encouraging them to limit high-risk procedures. One in 12 obstetricians who have reported changes in their practice as a result of the risk or fear of professional liability claims have stopped delivering babies.
Medical Liability reform took place in Texas in 2003. Many physicians said they moved to Texas as a result. According to the Texas Medical Board, "Medical license applications jumped 58% from 2,561 in 2003 to 4,041, an unprecedented number, according to the Texas Medical Board. The state saw a 7.2% growth in the number of ob-gyns between May 2003 and May 2008. Similar increases were observed in other specialties." (Texas population grew by a substantially larger percentage in the same period.) According to the Texas Insurance Department, physicians in Texas have seen a 25% overall drop in medical liability insurance rates since 2003. One provision of the Texas reform makes emergency room doctors immune for negligence unless it was "willful and wanton," which plaintiff's lawyers argue is almost impossible to meet. In the case of Jennifer McCreedy, who was seen by a physician's assistant in the emergency room, the supervising doctor testified he should have seen McCreedy himself, called an orthopedic surgeon, and read the charts more carefully, but the jury found that he didn't meet the willful and wanton standard. Malpractice claims declined 60% from 2003 to 2007, and payments per claim fell by one-third.
Physician advocacy groups say 60% of liability claims against doctors are dropped, withdrawn, or dismissed without payment. However even those cases have a price, costing an average of more than $22,000 to defend in 2008 ($18,000 in 2007). Physicians are found not negligent in over 90% of cases that go to trial - yet more than $110,000 (2008 estimate, $100,000 in 2007) per case is spent defending those claims. Malpractice has both direct and indirect costs, including "defensive medicine." According to the American Medical Association, defensive medicine increases health system costs by between $84 and $151 billion each year. Studies place the direct and indirect costs of malpractice between 5% and 10% of total U.S. medical costs, as described below. "About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers' group America's Health Insurance Plans. The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation's health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense." In one study of defensive medicine, Daniel P. Kessler and Mark McClellan found that, in treatment of heart disease, malpractice reforms reduced costs by 5% to 9% without affecting deaths or complications. Other estimates conclude that the cost of the medical liability system, including defensive medicine, is up to 3%. Uwe E. Reinhard wrote that many analyses of the costs of the malpractice system don't consider the benefits, such as compensating injured patients and motivating improvements. Proposed reforms would only reduce national health spending by 0.5%, according to the Congressional Budget Office. Many supporters of medical liability reform believe that laws modeled after California's Medical Injury Compensation Reform Act (MICRA) should be passed at the federal level. "California is the perfect model for federal medical malpractice reform", said Lisa Maas, executive director of Californians Allied for Patient Protection. "MICRA is considered the gold standard in terms of what other states look to in tort reform in the medical liability area." MICRA was passed in the midst of a medical liability crisis in 1975, as premiums soared and some California physicians were unable to find liability coverage. The law limits non-economic damages in medical malpractice cases to $250,000. It also imposes a sliding scale on plaintiffs' attorney fees that prohibits them from charging more than 40% on any recovery. MICRA advocates say the law has stabilized liability costs and preserved access to thousands of physicians, nurses, hospitals and other healthcare providers. In particular, MICRA is said to protect specialty and high-risk services, including women's services, community clinics and rural providers that can at least afford skyrocketing insurance costs. In addition, supporters say MICRA has saved healthcare consumers tens of billions of dollars by protecting against runaway damage awards. The American Medical Association is leading a campaign to pass medical liability reform and protect patient access to health care. AMA Leaders are working with state medical associations to enact and defend strong tort reform laws. They continue to advocate for federal reforms based on solutions such as the MICRA laws.
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