Let’s talk about the basics… what exactly IS medical malpractice? And how does a judge and jury determine if you’re guilty of it? Today we’re going to answer 4 common questions that healthcare professionals have on this topic so that you can know what elements of proof need to be established in a case, what’s expected of you, and how you can protect yourself.

Question #1 -What exactly is Medical Malpractice?

Medical Malpractice is professional negligence by a healthcare provider that deviates from the accepted standard of care, resulting in harm.

Medical Professional Liability Insurance, also known as medical malpractice insurance (or medmal insurance) provides coverage to physicians, surgeons, and other healthcare professionals for the liability that arises from a medical malpractice claim. In simple terms, it protects doctors and healthcare providers against claims filed by patients or their families who sue them, alleging harm by their negligent or harmful treatment.

Healthcare professionals are not expected to be perfect – none of us are! They are, however, required to meet the appropriate standard of care; which is what a reasonably competent and skilled provider, with similar background and training would have done in the same or similar situation. In order to prove that the standard of care was or was not met, attorneys on both sides may bring in expert witnesses to testify.

If, for example, a Radiologist’s actions are being questioned, another Radiologist or specialist in the given field may testify to show that the doctor failed to do something that he should have done or did something that he should not have done.

Question #2 – What does a patient need to prove in order to win a malpractice case against a healthcare provider?

A plaintiff alleging medical malpractice must prove the following:

#1 – A duty of care was owed by the healthcare provider to the patient

#2 – The duty was breached (standard of care was not met)

#3 – The breach caused the injury in question

#4 – The injury resulted in damages

The burden of proof lies with the plaintiff in a malpractice lawsuit and all 4 elements must be proven for a case to win at trial.

Physicians, dentists, nurses, and healthcare professionals owe a duty of care to those who seek their treatment. This element of proof is rarely disputed in medical malpractice cases, because once a provider agrees to treat a patient, he or she has a professional duty to provide competent care. More importantly, the patient must show that there was a real injury (physical or emotional) as a result of the alleged negligence.

Causation is arguably the most critical part of establishing proof in a medical malpractice lawsuit. While there may be injuries, if the injuries cannot be directly linked to the healthcare provider’s action (or lack of action), there is no case. There are several issues that can make causation difficult to prove in a medmal case.

Here are some examples:

• Trying to separate the effect of an existing condition from the effect of the negligent medical treatment (Did the doctor’s treatment cause the injury? Or was it already there?)
• Predicting if the outcome would have been the same, regardless of the provider’s actions (A patient is treated for stomach pain and discharged, but dies of a stroke at home later that evening)
• Multiple factors attributable to the injury (Many things could have caused the injury in question, but can it be directly linked to the provider’s care?)

If all 4 elements are proven and the jury finds in favor of the plaintiff, payment is made to indemnify the patient for their losses.

Question #3 – How do the courts determine how much a patient can recover in a malpractice case?

There are 2 types of damages that a patient may to seek recover from you in a medical malpractice lawsuit – compensatory and punitive damages. Let’s take a look at compensatory damages first.

Compensatory damages can be either economic or non-economic. Economic damages are awarded as compensation for monetary losses and expenses, which the patient has incurred, or is reasonably likely to incur in the future, because of the healthcare provider’s negligence. These include loss of income, medical expenses, and the cost of future medical care. These are the most common types of damages that patients look to recover in a malpractice claim.

Non-economic damages include pain and suffering, scarring, humiliation, permanent loss of an organ or limb, reduced enjoyment of life, etc. Both of these categories of compensatory damages are COVERED by your malpractice insurance policy.

Now let’s look at the other type of damages, which are punitive. Punitive damages are only awarded if the conduct of the healthcare provider is found to be willful and reckless – meaning you INTEDED to cause harm to the patient.

Punitive damages are in excess of those required to compensate the plaintiff for the wrongdoing and they are imposed in order to punish the defendant. For this reason, punitive damages are NOT COVERED by your malpractice policy.

Question #4 – What can I do to protect myself?

In order to practice with peace of mind and ensure that you are protected against malpractice claims, make sure you have appropriate malpractice insurance coverage. If you’re not sure that you have the right kind of coverage or have questions on what your policy does and does not cover for you, be sure to talk to your agent and make changes, where necessary.

Also, make sure that you are taking advantage of risk management education and services provided by your insurance carrier. Nearly all medical malpractice insurance carriers offer free risk management education which will help you reduce risk and practice safer medicine. Often these courses will also give you a discount on your premium and some even include CME credits, so it’s definitely worth looking into.