Medical Malpractice or Negligence

Medical malpractice is a legal cause of action that occurs when a medical or health care professional deviates from standards in his or her profession, thereby causing injury to a patient.[1]

In common law jurisdictions, medical malpractice liability is normally based on the laws of negligence.[2]

Although the laws of medical malpractice differ 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.[2] If a practitioner holds himself out as a specialist a higher degree of skill is required.[2] 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.[2]

As laws vary 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,

  • Medical Practitioners – including physicians, surgeons, psychiatrists and dentists.
  • Nurses, nurse practitioners, and physician assistants.[3]
  • Allied health professionals - including physiotherapists, osteopaths, chiropractors, podiatrists, occupational therapists, social workers, psychologists, pharmacists, optometrists, midwives, and medical radiation practitioners.[4][5][6]

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.[7] 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.[7]

The Supreme Court of the United Kingdom decided in 2018 that the duty of care extended to information given to patients by clerical staff. A patient at Croydon Health Services NHS Trust‘s emergency department suffered severe brain damage having been given misleading 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.[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,”[2] 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,[4] but most conversations between the parties and witnesses are discoverable.

Consequences for patients and doctors vary by country.

  • In Canada, all provinces except Quebec base medical malpractice liability on negligence, while Quebec follows a civil law system.[9]
  • Germany permits patients injured by medical negligence to bring a private action against the provider in contract, tort, or both.[10]
  • Sweden has implemented a no fault system for the compensation of people injured by medical treatment.[2] Patients who want to bring malpractice claims may choose between bringing a traditional tort claim or a no fault claim.[11]
  • In New Zealand, the Accident Compensation Corporation provides no-fault compensation for victims.[11]
  • In the United Statestort lawsuits may be used to seek compensation for malpractice. Awards of compensation in the United States tend to be much larger than awards for similar injuries in other nations.[2]

A no-fault system may provide compensation to people who have medical outcomes that are significantly worse than would be anticipated under the circumstances,[11] or where there is proof of injury resulting from medical error,[12] 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.[13]

Medico-legal action across multiple countries is more common against male than female doctors (odds ratio of 2.45).[14]

  1. ^ “Proving a Medical Malpractice Case I – Proving Negligence (Part II)”Physician’s Weekly. 20 April 2017. Retrieved 13 December 2017.
  2. Jump up to: a b c d e f g Marcus, Paul (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 12 June2017.
  3. ^ Brock, Douglas M.; Nicholson, Jeffrey G.; Hooker, Roderick S. (2016). “Physician Assistant and Nurse Practitioner Malpractice Trends”Medical Care Research and Review74 (5): 613–624. doi:10.1177/1077558716659022PMID 27457425. Retrieved 31 January 2018.
  4. Jump up to: a b “Medical Liability”National Conference of State Legislatures. 13 January 2014. Retrieved 23 November 2017.
  5. ^ “NPDB Research Statistics”National Practitioner Data Bank. U.S. Health Services & Resources Administration. Retrieved 23 November 2017.
  6. ^ Oliphant, Ken; Wright, Richard W. (2013). Medical Malpractice and Compensation in Global Perspective. Walter de Gruyter. ISBN 978-3110270235.
  7. Jump up to: a b Larson, Aaron (8 November 2014). “Medical Malpractice Law”ExpertLaw.com. Retrieved 13 December 2017.
  8. ^ Serious consequences’ for NHS after negligence ruling over receptionist’s advice”. Health Service Journal. 11 October 2018. Retrieved 12 November 2018.
  9. ^ Gilmour, Joan M. (1994). “Overview of Medical Malpractice Law in Canada”(PDF)Annals of Health Law3 (1): 179. Retrieved 12 June 2017.
  10. ^ Stauch, Marc S. (June 2011). “Medical Malpractice and Compensation in Germany”86 (3). Retrieved 12 June 2017.
  11. Jump up to: a b c Bogdan, Jocelyn. “Medical Malpractice in Sweded and New Zealand”(PDF)Center for Justice & Democracy. Retrieved 13 December 2017.
  12. ^ Gaine, William J. (10 May 2003). “No-fault compensation systems”British Medical Journal326 (7397): 997–998. doi:10.1136/bmj.326.7397.997PMC 1125962PMID 1125962.
  13. ^ Coppolo, George (8 December 2003). “Medical Malpractice No Fault Systems”Office of Legal Research. Connecticut General Assembly. Retrieved 13 December2017.
  14. ^ Unwin, Emily; Woolf, Katherine; Wadlow, Clare; Potts, Henry W. W.; Dacre, Jane (1 January 2015). “Sex differences in medico-legal action against doctors: a systematic review and meta-analysis”BMC Medicine13: 172. doi:10.1186/s12916-015-0413-5PMC 4535538PMID 26268807.

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