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MEDICAL MALPRACTICE

Medical malpractice is the most common type of malpractice lawsuit. It typically involves the negligence of a physician while diagnosing or treating a patient. In the past, courts decided whether a physician's conduct was negligent by comparing that conduct with the practices in the locality where the doctor worked or with the practices of his or her field of medicine. These comparisons made it difficult for injured patients to win malpractice lawsuits. Other doctors who could describe the practices in the locality were often reluctant to testify against their colleagues. More recently, courts have applied a national standard for professional conduct when determining whether malpractice occurred.

A small proportion of medical malpractice cases result from the intentional misconduct of the physician, such as improperly touching a patient who is unconscious. However, plaintiffs who are harmed in such a manner typically charge that the physician committed battery, an intentional tort, rather than alleging malpractice. A physician may also commit malpractice by doing something without obtaining the patient's informed consent. For example, a doctor may commit malpractice by giving a patient an experimental drug without first informing the patient about potential risks or side effects, and then obtaining the patient's consent to use the drug.

Most physicians purchase insurance to protect themselves from the high cost of malpractice lawsuits. In the mid-1970s and again in the mid-1980s, insurance companies sharply increased the cost of medical malpractice insurance. Many reasons for the rising costs were suggested. Some people blamed the insurance industry, claiming that insurance companies charged excessive amounts. Others claimed that lawyers were to blame because they brought far too many medical malpractice actions, including many that had no merit. Still others charged that the rise in litigation was the result of increasingly complex and specialized medical practices associated with the development of new medical procedures, equipment, and medications.

In response to the rapid rise in insurance costs (and the resulting increase in the cost of health care), many states passed legislation designed to reform tort law. These reforms provided various restrictions on medical malpractice suits, including limitations on the amount of damages that could be awarded or the fees that an attorney could receive. Some states adopted procedural restrictions, such as shortening the time period in which a plaintiff is permitted to file a claim or requiring plaintiffs to submit their claims to screening panels that review the claims and attempt to resolve disputes prior to litigation.

These reform statutes have generated controversy. A number of state supreme courts have found various measures to be in violation of state constitutional protections. For example, courts have invalidated laws that seriously limit the rights of plaintiffs to file suit or that severely limit damage awards. As the rise in medical insurance costs tapered off at the end of the 1980s, the pressure to reduce malpractice actions also diminished.

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MALPRACTICE LAWSUITS

Malpractice is a special type of tort. A tort is a civil wrong that permits an injured party to sue for compensation for damages caused by the harmful conduct of another person. One common type of tort arises when a driver fails to exercise due care (ordinary care) while operating an automobile and causes an accident that results in injury to others. Malpractice and other torts have these three features in common: they involve a person who has a duty of care toward others, a failure to exercise due care, and an injury or other monetary damages caused by that failure.

Because malpractice cases involve members of a profession, many of the issues that arise are more complex than the issues in other tort cases. When an automobile driver runs a red light or speeds, the driver clearly has created a danger for other people on the highway and will be held liable if the dangerous driving results in an accident. In many malpractice cases, however, it is not as clear what the exercise of due care means. Often there are alternative ways to treat a patient or handle a legal issue. In a malpractice action, an expert in the field may have to testify about whether the conduct of the defendant (the professional) fell below what is expected of a professional in that field. It may also be difficult to establish whether the conduct of the defendant caused the injury to the plaintiff (the party seeking damages). A medical patient's health may have declined or a client in a lawsuit may have lost a case, regardless of whether the doctor or lawyer actually made an error. The plaintiff in a malpractice case must prove that the injury would not have occurred in the absence of the allegedly improper conduct.

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