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The professions in which malpractice can occur require specialized
training and study, and professionals in these fields must exercise
a high degree of judgment in performing tasks generally beyond the
skill of laypeople. In addition to medicine, these professions include
dentistry, accounting, engineering, and architecture. Medical malpractice
lawsuits are far more common than those involving other professions.
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.
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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