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 situation.

In order to prove that the standard of care was or was not met, attorneys on both sides may bring in an expert witness 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.

What does a patient need to prove in order to win a malpractice case against a doctor?

A plaintiff alleging medical malpractice must prove the following:

• A duty of care was owed by the healthcare provider to the patient
• The duty was breached (standard of care was not met)
• The breach caused the injury in question
• 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.

How do the courts determine how much a patient can recover in a malpractice case?

There are 2 types of damages in a malpractice case – Compensatory and Punitive.

Compensatory damages can be Economic or Non-Economic:

• Economic (examples: loss of income, medical expenses, the cost of future medical care)
• Non-economic damages (examples: pain and suffering, permanent loss of an organ or limb, reduced enjoyment of life, etc.)

Establishing the amount of damages can be difficult, as some of these items do not have a direct cost tied to them. For example, if someone was an avid marathon runner and now can no longer enjoy that hobby, how much is it worth?

The other type of damages in a medmal case are punitive damages.

Punitive damages are only awarded if a healthcare provider’s conduct is found to be intentionally harmful or reckless. We don’t see a lot of this in medmal cases, but it’s important to know that punitive damages are, by nature, intended to punish the provider – so your malpractice insurance will not cover these. They also do not cover liability that arises from sexual misconduct, criminal acts, and inappropriate alteration of patient medical records.

What can you do to protect yourself?

• 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.
• Take advantage of risk management education and services provided by your insurance carrier – Nearly all medical malpractice insurance carriers offer free risk management education, many will also give you a discount on your premium if you take their course (and some even include CME credits), so it’s definitely worth looking into.