Medical Malpractice Assignment Paper

Medical Malpractice Assignment Paper

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Medical malpractice is any deviation by a health care provider from accepted standards of practice, whether or not it causes injury to the patient. Medical errors can occur in diagnoses, surgery, and prescriptions. In medical malpractice trials, defendants have the burden of proof, and expert witnesses testify against health care providers (including medical doctors, hospital residents, pharmaceutical companies, dentists, nurses, or therapists). Given both the injuries (fatal and nonfatal) associated with medical malpractice and the ensuing rise in costs of insurance premiums, medical liability is a social problem with significant ramifications for everyone’s health care.Medical Malpractice Assignment Paper


According to the Institute of Medicine of the National Academies, the most common medical mistake is with medication, harming about 1.5 million people annually. Another one third of all claims result from diagnostic errors (e.g., interpretation of radiology reports). Generally, medical errors cause approximately 100,000 deaths a year. Death from prescription errors increased dramatically in the past 25 years and exceeded all other causes of death except AIDS. Fatal prescription errors are even greater for outpatients than for inpatients, particularly among the elderly. This is due in large measure to increased use of mail order and Web-based pharmacies, enabling patients to self-medicate too much or suffer adverse effects of multiple medications, since they receive no direct professional guidance.

While medical malpractice lawsuits ensure the rights of injured patients and compensate them for medical negligence, the dramatic increase in lawsuits has caused a growing public concern about the ramifications of huge settlements. As liability insurance premiums rise for health professionals, those additional costs are passed on to consumers in the form of higher medical fees for goods and services. Furthermore, fear of lawsuits forces both hospital staff and physicians to prescribe routinely tests once considered unwarranted but now legitimated as “defensive medicine,” at a cost exceeding $50 billion annually.Medical Malpractice Assignment Paper

Medical errors and preventable adverse drug events are causes for serious concern. Studies indicate that more than 500,000 drug-related injuries occur among Medicaid or Medicare recipients in outpatient clinics—the majority of whom are elderly, bilingual, and poorly educated. For example, poor women who are heads of households typically utilize outpatient clinics rather than private doctor offices. This large segment of society typically experiences poorer health conditions and has great high-risk medical problems.

The actual size of malpractice awards is impossible to calculate, since so many lawsuits are settled before they reach trial. The Congressional Budget Office reports that 15 claims are filed for every 100 doctors each year, and that about a third of the claims result in insurance payments.

A growing number of doctor’s groups allege that medical malpractice lawsuits are responsible for the increasing medical malpractice insurance rates. Many doctors, especially in states with higher premiums, move or retire, resulting in severe shortages in some states and within such specialties as orthopedics, neurosurgery, and obstetrics-gynecology.

A 2003 congressional report stated that premium rates grew rapidly since 1998, particularly in the area of obstetrics-gynecology, although these rates varied widely by state. Multiple factors contributed to these increases, including insurers losses, declines in investment income, a less competitive climate, and climbing reinsurance rates. Advocates of tort reform want a fairer assessment of the relationship among claims, insurance rates, and the overzealous litigation suits by trial lawyers. Earlier, a 1999 study by the U.S. General Accounting Office reported that the single most important factor in the dramatic increase of malpractice premium rates was the falling investment income of insurance companies as a direct result of medical malpractice claims.Medical Malpractice Assignment Paper

Obstetrics, with the delivery of babies, is especially prone to malpractice claims, so insurance rates in most states far exceed $100,000 per doctor. Unfortunately, 1 in 200 babies is born with some form of injury. Although a neurologically impaired infant or neonatal death is a rarity, it provokes strong emotions of empathy for the infant’s family. When litigated, such cases often end with unusually large settlements awarded to the families. Increasing professional liability premiums and the fear of lawsuits have caused obstetrician-gynecologists (OB-GYNs) to make dramatic changes in their practices. According to the results from a 2006 American College of Obstetrics and Gynecology Survey, 70 percent of OB-GYNs considered retiring or moving; 65 percent decreased the number of high-risk obstetric patients and stopped performing and offering certain types of high-risk medical care. Eight percent stopped practicing obstetrics altogether. Undoubtedly, such an environment deprives women of all ages of access to experienced health care providers, since the average age of retirement for obstetricians is 48—an age once considered the prime of a professional medical career.

Public opinion supports limits on malpractice damages. In a recent Gallup poll, three fourths of respondents wanted a maximum amount set for awards for patient emotional pain and suffering. Thus, when physicians, medical associations, and insurers joined forces to pressure legislators to limit the amount of medical malpractice awards, lawmakers were receptive. The subsequent tort reforms placed caps on non-economic damages—the so-called pain and suffering and punitive damages—which led to savings, lower premiums, and reduced claims in states that placed caps on non-economic damages. Presently, 34 states have such caps, according to the National Conference of State Legislatures, and they have lower insurance costs than the remaining 16 states.

Undoubtedly, both health care providers and patients have suffered through the medical liability “crises” of the past 30 years. Legal, medical, and perceptual barriers to reducing medical errors must be addressed to ensure the health of all citizens of society. While systemic problems reside in the structure of medicine today, especially with regard to the delivery of medicine, some advocates urge the creation of a federal agency to collect and analyze data on medical errors and to make recommendations on procedures for their control and reduction.Medical Malpractice Assignment Paper

The definition of negligence is the breach of a duty caused by the omission to do something which a reasonable man, which is guided by those considerations which ordinarily regulate the conduct of human affairs, would do (Agarwal, 2011). Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglecting the plaintiff has suffered injury to his/her person or property (Agarwal, 2011). The birth of negligence started by the court case of Donoghue V Stevenson (1932), apparently Donoghue’s friend had purchased a bottle of ginger beer which is manufactured by Stevenson and gave it to Donogue. She drank most of the bottle but then noticed the decomposed remains of a snail in the bottom of the bottle and sued Stevenson for causing negligence in a form of injuries or losses. From there on, Donoghue V Stevenson (1932) is the hallmark case for negligence.

Medical Negligence

Medical negligence or malpractice is defined as the failure or deviation from medical professional duty of care such as a failure to exercise an accepted standard of care in medical professional skills or knowledge, resulting in injury, damage or loss (Thirumoorthy, 2011). Medical negligence comes under the laws of Tort, and a Tort is a wrongful injury, a private or civil wrong which is not a breach of contract (Thirumoorthy, 2011). Torts may be intentional, when the professional intends to violate legal duty or negligent, when the professional fails to exercise the proper standard of case established by law. In principle, the social aims of the Tort system in medical indemnity have three main purposes which are providing compensation for injuries, creating accountability for actions and fostering patient safety and quality (Thirumoorthy, 2011). The elements that make up medical negligence are a duty of care is owed. The plaintiff must show that the doctor or hospital owes him a duty of care as a patient. A breach of duty of care, the standard of care administered falls below the legal standard. There is causation; the injury suffered was a directly or significantly caused by the breach of duty. Lastly, there is damage; the patient suffered Injury as a result of the breach of duty. If a breach of duty occurs, but does not lead to injury, then negligence cannot be proved. In a bad medical outcome, there are several causes for injury or damage. The hallmark case for medical negligent is Mahon V Osborne (1939) which is about swab being left in a patient’s body after an operation which causes complication to the patient.

Negligent Misstatement

There are two important types of negligence which are required for this assignment; one of its which is negligent misstatement and the other is medical negligence. A negligent misstatement is a claim or action which is brought up by one party against another party at common law in tort (O’Riordan, 2007). This claim takes places if the party against whom the claim is brought made a statement which was considered to be negligent which is the “Defendant” and the party which is bringing the claim which is the “Claimant” relied this statement to its injury and suffered a loss as a result (Serota, 2012). In order for a claim for negligent misstatement to be successful, the claimant must be able to show the court that on a balance of probabilities the defendant owed them a duty of care (O’Riordan, 2007). This duty of care is not to case such harm which was suffered by their negligent misstatement, further that the defendant had breached the duty of care owed and that the claimant has indeed suffered loss. If the claimant cannot satisfy the aforesaid then they will not have a claim for negligent misstatement (O’Riordan, 2007). Lastly, if the claimant can show that there was a contract in place between the parties then he or she may be able to sue under the contract for negligent misrepresentation as well as under tort. The hallmark case for Negligence misstatement is Hedley Byrne & Co Ltd V Heller & Partners Ltd (1964) which is an advertising agency sought references from a bank as to the creditworthiness of their client, as they were to act as personal guarantors for payment of advertising, and the bank stated that the client was creditworthy when it was not.Medical Malpractice Assignment Paper


Elements of negligence

The five elements of negligence include duty of care, breached of duty, cause in fact, proximate cause and actual harm. Firstly in duty of care, the outcomes of some negligence cases depend on whether the defendant owed a duty to the plaintiff (Grady, 2006). A duty arises when the law recognizes a relationship between the plaintiff and the defendant. Due to this relationship, the defendant is obligated to act in a certain manner towards the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to the plaintiff where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally finds that such duty exists (Grady, 2006).

Breached of duty means a defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff (Grady, 2006). The duty is breached by failing to exercise reasonable care in fulfilling the duty. Hence the question of whether the duty exists, the issue of whether the defendant breached a duty of care is decided by a jury as a question of fact.

Cause in fact under traditional rules in negligence cases, a plaintiff must proof that the defendant’s action actually caused the plaintiff injury (Grady, 2006). This is often referred to as “but for” test causation. The “but for” test is to used to establish whether the damage was caused by the breach of the duty of care. If harm to the plaintiff would not have occurred “but for” the defendant’s negligence, then the negligence can be classed as a cause for the plaintiff’s harm or injury.

Proximate cause relates to the scope of a defendant’s responsibility in a negligence case (Grady, 2006). A defendant in a negligence case is only responsible for the harm that the defendant could have foreseen through his actions (Grady, 2006). If a defendant has caused damages that are outside of the scope of the risk then the defendant could have foreseen, then the plaintiff cannot prove that the defendant’s actions were the proximate cause of the plaintiff’s damages (Grady, 2006).

Lastly, actual harm means negligence requires actual physical harm, classically a physical impact. Suppose, however, that the plaintiff has not been physically struck, but has merely suffered emotional distress or economic loss. The modern rules of what constitutes actual harm are much broader than what they used to be. When the defendant’s negligence has physically injured the plaintiff or destroyed his or her property, actual harm is usually clear.

Medical Negligence Case – USA

The case that I have chosen for medical negligence is (Rubb V. Balboa Naval Medical Center San Diego). The case shows a medical malpractice involving breach of standard of care. The plaintiff was left with severely brain damaged when the surgeon removed healthy brain tissues in an attempt to treat a mild condition after failing to perform the correct tests. Moreover, the second surgery on the plaintiff ignored standard procedures for this kind of operation and was performed without adequate support staff being available. Thus result in bleeding and brain swelling which left the plaintiff profoundly disabled.

The plaintiff was age of 14 which are experiencing several symptoms including headaches, visual defects, balance problems and nausea. The plaintiff is the daughter of retired Marine and army officer and therefore plaintiff seek treatment at Balboa Naval Medical Center San Diego (Guire, 2003). Plaintiff has undergone CT scan and the images from the scan revealed a mild mass comprised of fat and calcification that have developed in the plaintiff’s brain (Guire, 2003). However, Dr Grossmith which is the plaintiff’s doctor refused to review interpretations of the CT scanned images by neuroradiologists. Instead, Dr Grossmith interpreted the images himself and concluded that plaintiff’s symptoms were caused by a tumor. Based on Dr Grossmith interpretation and physical examination, he advised the plaintiff parents that stroke, blindness, or death would result if the tumor was not surgically removed (Guire, 2003).Medical Malpractice Assignment Paper

Dr Grossmith attempted to surgically remove the mass, but was unable to reach the mass. Therefore a second surgery was conducted to the plaintiff 3 days after the initial surgery, Dr Grossmith only able to partially extract the suspected tumor, the procedure was disrupted b bleeding and severe swelling of the brain. During the procedure, Dr Grossmith removed a significant portion of plaintiff’s healthy brain tissues. Therefore ultimately lead to the plaintiff injuries.

Dr Grossmith own a duty of care to the plaintiff and breached multiple standard of care by misinterpreting the CT scanned images by claiming the complications caused to the plaintiff are indeed a tumor in the plaintiff’s brain. Secondly, Dr Grossmith breached the standard of care by refusing to review interpretations of the CT scanned images and pursued on his own interpretations. Thirdly Dr Grossmith breached the standard of care by commencing the second surgery after an initial failed attempt. The operation requires a lengthy and complex procedure to commence earlier in the day to ensure availability of addition surgical staff in the event of unexpected complication (Guire, 2003). Dr Grossmith was unable to identify the source of the bleeding that occurred during the second surgery therefore he summoned a colleague from home, which is also one of the reasons that Dr Grossmith has breached the standard of care.Medical Malpractice Assignment Paper

Dr Grossmith has satisfied bolam test as a doctor, he should have the upmost responsibility to treat their patient but however, Dr Grossmith ignored standard procedures while conduction operation on the plaintiff which resulted complications to the plaintiff after the operation. There’s a causal link between the plaintiff’s complications to Dr Grossmith negligence which satisfied the “but for” test. The injuries caused to the plaintiff are foreseeable as the injuries are the type which a reasonable doctor can foresee will occur because of the negligence act conducted by Dr Grossmith. Therefore, the Dr Grossmith is liable for causing the damages. Hence the plaintiff is entitled to acquire compensation from the Hospital management amounting to USD $ 3,500,000.00 settlement.

Negligent Misstatement Case – Malaysia

The case that I have chosen for negligent misstatement is ( Balakrishnan A/L Devaraj. Girija Devy A/P Gopinathan Nair V Admiral Cove Development Sdn Bhd). The case involves breach of duty of care and contract. The plaintiff ( Balakrishnan A/L Devaraj and Girija Devy A/P Gopinathan Nair) is suing the defendant ( Admiral Cove Devlopment Sdn Bhd) for negligent misstatement and misrepresentation. The plaintiffs are the purchasers of a unit, namely an apartment in the project from the defendant. However the proposed project purchased from the defendant was different from what the defendant’s representative or agent has previously agreed on resulting loss is suffered to the plaintiffs.

The plaintiffs have viewed a miniature model of the project displayed at the launching of the project at Shangri-La Hotel, Kuala Lumpur on 13 May 1995. The defendant’s miniature model and a printed brochure of the proposed project “showing a sandy beach front, umbrellas, relaxing easy chairs and sail boats close to the beach” and the defendant representatives or agent represented to plaintiffs that the plaintiffs will be able to swim directly upon exiting the said unit. The defendant’s sales and purchased agreement even stated that the plaintiffs’ apartment will fulfill to the above facilities upon completion of the proposed project. Upon completion of the proposed project and handover of the said premises to the plaintiffs on 30 June 1998, the plaintiffs found out that the aforesaid representations were false when a wall was erected right across the sea fronting and rocks, stones and boulders all along the front of the sea outside the plaintiffs’ property. Moreover sewerage discharges being led off visibly into the sea in front of the plaintiffs’ property. The plaintiffs calms that the wall and rocks have affected their enjoyment of the aforesaid unit by the diminished aesthetic and or environmental conditions.Medical Malpractice Assignment Paper

To make the matter even worst, road alterations were being conducted in front of the plaintiffs’ property and neighboring properties due to sewerage leakage caused by improper fittings. The defendant issued a statement to the plaintiffs notifying them that the plaintiffs’ property will not be affected during the alteration process. However the defendant found out that the root cause of the sewerage leakage is within the plaintiffs’ premise which requires demolishing a portion of the premises retaining wall which causes inconvenience to the plaintiffs.

The plaintiffs contended that as a consequence of the above, they suffered loss and expense and seek compensations amounting of RM 100,000.00. However the decision of the court allowed the plaintiffs to entitle RM 45,000.00 as compensation from the Defendant.Medical Malpractice Assignment Paper

The defendant owes duty of care to the plaintiff as the defendant must take responsibilities as a developer to their purchaser. The defendant has breach the duty of care by making representation which were false due to the presence of a wall, rocks, stone, boulders and the presence of sewerage discharge being led off visibly into the sea in front of the plaintiffs’ property. The defendant even further breached the duty of care by providing false statements to the plaintiffs, stating that their property will not be affected during the road alteration process. There’s a causal link between the plaintiff damages to the defendant negligence which satisfied the “but for” test. The plaintiffs’ damages is reasonable foreseeable. Therefore the defendant is liable for causing the damages. Hence the plaintiff is entitled to acquire a reduced compensation from RM 100,000.00 to RM 45,000.00 from the defendant.


In conclusion, negligence is the breach of a duty caused by the omission to do something which a reasonable man, which is guided by those considerations which ordinarily regulate the conduct of human affairs, would do. The two types of negligence required for this assignment are medical negligent and negligence misstatement. The elements that constitute negligence are duty of care, breached of duty of care, causation and damages.

Furthermore, it is important for medical practitioners to be aware that they owe a legal duty of reasonable care to their patients and must exercise appropriate reasoned and responsible judgment at all times. Lastly, developers and other people from all traits must also be aware that they owe a duty of reasonable care and responsibilities to their clients and must exercise appropriate ethical standards in providing information which will not cause any damages to their clients.Medical Malpractice Assignment Paper

Consequences of Medical Malpractice

No one goes into a hospital or doctor’s office expecting to experience more health problems at the hands of the very nurses, doctors, and medical staff they’re seeking help from. Unfortunately, medical malpractice occurs with surprising frequency, and every year thousands of lawsuits are filed due to negligence on the part of individuals who are looked to for advice, diagnosis, and treatment for medical problems. While medical malpractice is usually unintentional, a lack of reasonable and appropriate care towards a patient can easily result in serious consequences.

The New York City medical malpractice lawyers of Hach & Rose, LLP, believe that no one should have to suffer because of someone else’s negligence. If you or a loved one was harmed because of medical malpractice, our experienced attorneys may be able to help you seek financial compensation for your suffering. Contact us today at (212) 779-0057, to learn more.

Potential Results of Medical Malpractice

Any time a medical professional fails to act in accordance with the standards of his or her profession, patients are put at risk of suffering devastating consequences. Some possible consequences of negligence on the part of health care professionals can include:

  • Worsening of the original condition
  • Failure to treat the original condition
  • Development of a separate condition
  • Unnecessary surgery

When a person is not treated with the kind of medical care that a reasonable doctor, nurse, or medical facility would provide and they are seriously harmed, they may be able to file a lawsuit against the responsible parties in order to pursue compensation for their medical bills, pain and suffering, and other losses.

Medical negligence is never a situation we want to see, but it does happen, and families have to go through it every day. While it occurs more than it should, responding to medical negligence is equally important. Plenty of studies have detailed that medical negligence severely alters the life of patients and their families, and the consequences for these actions are also severe. Doctors know that, which is why they have malpractice insurance. If you’re going through a similar case, do not hesitate to reach out to The Snyder Law Group, as we’re here to help you through this difficult time. Medical negligence causes many unique struggles.Medical Malpractice Assignment Paper

Emotional Response

A medical error not only has a clear physical reaction, but the emotions of a patient are impacted as well. As with any relationship, the trust that was there between the patient and doctor is completely broken, and most likely not replaceable. When a doctor makes a grave mistake, it’s difficult to still maintain any type of belief in them. The potential to live with an unwarranted condition can take a toll on someone’s emotional state. It goes further than just the patient though, as medical negligence affects the entire family, well as friends. It’s an overwhelming emotional journey that words cannot do justice.


A medical error doesn’t stop at the immediate physical or emotional pain. It can actually lead to other issues as well. One health mistake can spiral into something else, and that only leads to a greater disadvantage. At the end of the day, none of this is the fault of anyone but the doctor, and the patient should not have to pay for that any more than they already have.Medical Malpractice Assignment Paper


Unfortunately, medical negligence means you’ll be making more trips to the hospital, physical therapy, or some type of medical practice. These trips cost an extensive amount of money, and that’s not even accounting for those who have to take time out of their day to care for the patient. Any means of income is also disrupted, as suffering from medical negligence can make it difficult to work.

Medical malpractice and medical negligence are two terms that are commonly used in legal circles. Most clients don’t know the subtle difference between these two terms and they use the terms interchangeably. But medical malpractice and negligence are two different situations. This article provides information on the difference between medical malpractice and medical negligence.

Medical negligence is a situation where a health care provider fails to exercise proper care that a reasonably prudent individual would exercise in such situations. It is defined in law as harm caused by carelessness which was not intentional. On the other hand, medical malpractice is defined as a situation where a doctor fails to provide his/her service as per the standards set by a governing body in the field which could subsequently result in causing harm to the plaintiff.

Medical malpractice and medical negligence cases are filed in civil courts in order to get compensation for the mental and physical injuries caused to the individual. Medical malpractice and negligence cases are hard to prove most of the time. A clear causal relationship should be established between the injuries caused to the individual and the negligent act in order to win a favorable judgment. There are four major elements to proving a negligence or malpractice case.

The first element is the duty part where the defendant had a duty to the plaintiff. Breach is the second element where the defendant breached his/her duties. Causation is the third element where the harm caused to the person was a direct result of the breach of duty. The final element is damage where the damages sought need to be directly related to the harm caused.

Victims of medical malpractice often have serious financial issues directly related to their damages. Medical expenses and lost income associated with a medical malpractice case often bear down and put already troubled families into a downward financial spiral.

Given the backlog of cases in the US courts in general, it may take six months to a year or more before a medical malpractice claim is settled. Often times, this is too long for families struggling with out of hand bills. Your attorney can give you options to get some money up front, if your case stands a good chance at success.Medical Malpractice Assignment Paper

How Long Will a Malpractice Lawsuit Take?

The time it takes to complete a medical malpractice lawsuit depends on the complexity and strength of the case, as well as the bandwidth of the court of jurisdiction. Most medical malpractice lawsuit will end up settling out of court, but still require that both sides file motions and go through discovery through the court process.

A medical malpractice attorney will be working to find the best balance between getting an injured patient and/or their family members their money quickly, while still making sure they get a fair amount.

Often times, a case may be settled faster for a lesser amount of money, but the family will potentially lose several hundred thousand dollars or more. Alternatively, cases that win at trial tend to have much greater payouts, but can take several years before any money is paid.

Initial Process of a Medical Malpractice Lawsuit


Once the complaint has been filed and all involved parties notified of the lawsuit, both sides will begin the process of discovery. During discovery, both sides will request information, evidence and related documentation from the other in an attempt to gather the facts and build their respective cases.

During discovery, the defense and plaintiffs will need to hire an expert medical witness to consult on the case and to advise on the merits of the medical negligence complaint.

Expert Medical Witnesses

A neutral third party expert medical witness will be called upon by both sides to investigate the details of the case, establish the standard of care, and determine if and how medical negligence occurred.Medical Malpractice Assignment Paper


Depending on the state in which the complaint was filed, the expert medical witness may be either a generalist, or a specialist in the field of medicine involved in the lawsuit. Each state has laws governing the extent of specialty required by an expert witness in a medical malpractice case.

In addition to establishing negligence, the expert witness must also determine if, and how the negligence lead to additional undue injury or damages to the patient.

If the expert medical witnesses both find that the medically accepted standard of care was not breached, and negligence had not taken place, then the lawsuit will likely be dismissed. If both experts disagree, then more witnesses may need to be called upon.

If the medical experts both agree that negligence likely occurred, then the lawsuit will proceed.

Negotiating a Settlement

If it is established, through the discovery period and medical expert opinion, that the case has merit, then the defense will likely begin their attempts to settle the case out of court.Medical Malpractice Assignment Paper

Just like any other type of negotiation, the defense attorneys representing the medical malpractice insurance provider will do their best to minimize the amount of money that their client will have to pay out for the lawsuit. Additionally, they will try to avoid having to go to trial due to the cost of doing so.

On the other side, the plaintiff’s medical malpractice lawyer will consider the strength of the case when determining an appropriate settlement amount. If the defense attorneys do not offer a reasonable settlement, then a good medical malpractice attorney would take the case to trial.

Why Settle?

Over 90% of medical malpractice cases settle out of court, and for good reason. Neither side wants to go to court, because it is expensive and time-consuming. Generally, only those cases where neither side can agree on a settlement amount will go to trial, and even then it is usually a last option.

Settlement Amounts vs. Jury Awards

The average out of court settlement for a medical malpractice lawsuit is just over $425,000, while the average jury award is now over $1 Million. So why not go to trial every time?

The fact is that medical malpractice litigation is very expensive, time consuming and not guaranteed. If an attorney passes on a settlement offer only to find that a detail in the case may jeopardize its success, then both that attorney and their client loses.Medical Malpractice Assignment Paper

However, if the case is one that has a very good chance at winning at trial, and the defense does not offer a very handsome settlement, then trial may be necessary. In many cases the defense will wait until the last minute to offer a large settlement hoping that the plaintiff will take a smaller amount. There have been many cases where the defense will finally make a large settlement offer in the court room, right before opening remarks.

This is why it is so critical that victims of medical malpractice hire an attorney that has experience in litigating medical malpractice cases in court. If the defense knows that the plaintiff will not hesitate to take a case to trial, then they will offer a large settlement earlier to avoid the expense of trial, especially if the case is a strong one.

Collecting the Money

Once a settlement or successful jury verdict has been reached, the case is completed and the plaintiff is paid for all their damages. At this point, there are two common options for the injured patient and/or their family members to collect the money; Lump-sum payment or structured payments.

Structured Payment

Structured settlements or awards are often the option chosen in cases of birth injury, or malpractice to young children. The reason the courts often set up these types of funds is to ensure the child has money to cover long-term or permanent medical care.Medical Malpractice Assignment Paper

In some cases, plaintiffs will later regret not receiving a lump-sum payment and attempt to “sell” their structured payments. This is often a mistake, as companies that buy these types of structure, “over time” payments offer much less than what the beneficiary would otherwise receive.

Lump-Sum Payment

A lump-sum payment is generally the best and least complicated way to collect the award or settlement money. Most plaintiffs and their attorneys favor this method of collection as it allows for the most options with regard to covering expenses and setting up funds for future medical care.

Medical Malpractice and the Legal Process

If you are involved in a situation where a physician’s medical error rises to the level of medical malpractice, you may wish to initiate a law suit against the treating physician.  A judgment in your favor may provide you with compensation for your medical expenses, pain and suffering, and lost wages.  Otherwise, an act of medical malpractice may leave you and your family with insurmountable debt.

The path to recovery is not always a clear one.  Medical malpractice law suits are overwhelming and complex.  If you choose to file a law suit, you will almost certainly need to hire an attorney to aid with investigation and the filing of your claim.  Injury Board has developed this article to assist you in your legal battle, help you wade through the complexities of the legal system, and understand which qualities you should seek when hiring a medical malpractice attorney.Medical Malpractice Assignment Paper

What to Look for in a Medical Malpractice Attorney

Certainly your medical malpractice attorney should be honest, trustworthy, experienced, and competent.  However, your attorney should possess other qualities as well.  An attorney’s reputation can be a tremendous influence in obtaining a favorable settlement.

An attorney who is known for vigorously fighting for his clients has a greater ability to demand fair compensation than an attorney who settles cases after the first offer.  Insurance companies know which attorneys will go all the way to trial with a case in search of a favorable outcome for their clients.  Since trials often involve long, tedious, expensive processes, insurance companies prefer quick resolutions of claims.  Thus, in the interest of avoiding trials, the companies are likely to offer high settlement amounts to clients represented by attorneys with reputations for fighting for clients’ rights.

In light of this trend, you will benefit from doing research to find an attorney with a reputation for being successful.  Also note that many jurisdictions have short statutes of limitations (meaning that patients have a limited amount of time after a medical error to bring a claim), so you should meet with an attorney as soon as possible should you decide to file a law suit.

Incident and Investigation – Medical and Legal Considerations

There are four key elements to a viable medical malpractice claim: duty, breach, causation, and damages. Before agreeing to take you on as a client, a good attorney will ask you to meet for an initial consultation .  During this meeting, the attorney will ask a series of questions to learn more about your accident, your previous medical history, and your current medical condition.  Your attorney must be able to prove all four elements of the claim in order to ensure a fair recovery for your claim.  If one of the elements is missing, the court will not find in your favor.  The following is an overview of the issues your attorney will consider when deciding whether he/she can take your case.

Duty – Did the doctor owe you a duty of care?  Generally, a physician owes a duty of care to the patient if a physician-patient relationship exists.  The doctor owes his/her patients the standard of care of an average physician.  Whether an excellent doctor would have committed a medical error in the same situation is irrelevant.  The doctor need only perform as an average doctor would have performed.  Note that you may hold a specialist to a higher standard than a general practitioner.Medical Malpractice Assignment Paper

Breach – Did the doctor breach (fail to provide) the duty of care?  A physician breaches his duty of care to a patient when his treatment falls below the standard of care required for a similarly situated physician.  Since the standard of care for a general physician is that of an average doctor, a general physician breaches his duty of care when his treatment is deemed below average.  Again, please note that a specialist may breach this duty more easily than a general physician because specialists are often held to higher standards of care.

Causation – Was the doctor’s breach of medical duty the direct cause of the patient’s injury?  In order to prove causation, one must prove that there is a reasonable degree of medical certainty that the doctor’s breach caused the harm to the patient.  This means that more likely than not (51% chance), the breach caused the harm.

Damages – Did the breach cause economic damages to the patient?  Damages may be in the form of unwarranted medical bills or lost wages.  A patient may also be awarded damages for pain and suffering, and in rare cases, punitive damages.  There are a couple different types of damages to which you may be entitled.

Compensatory Damages – This form of damages serves to reimburse patients for economic damages and non-economic damages caused by medical malpractice.  Economic damages include lost wages, medical expenses, and life care.  Many non-economic damages revolve around physical and psychological harm.  Usually, these types of harm are caused by loss of limbs, organs, or senses (such as vision or hearing).  Patients can also recover for severe pain and emotional distress.  The patient’s family can recover for reduced enjoyment of life due to disability or loss of a loved one.Medical Malpractice Assignment Paper

Punitive Damages – Generally, courts are reluctant to award punitive damages for medical malpractice lawsuits.  Courts usually reserve punitive damages for extremely egregious conduct that rise to the level of willful and wanton.  A doctor may be subject to punitive damages if she fails to treat a very obvious and serious illness, alters medical records after the fact, fails to admit a mistake, or consciously or intentionally fails to exercise due care.

The Bottom Line – Financial Considerations

If the facts of the accident or injury seem to make a legal case possible, a good attorney will then enlist a medical expert(s) to conduct a medical investigation and determine whether your case makes sense financially.  In addition to containing all the necessary legal and factual elements, it must also be possible for an attorney to try your case in terms of the costs that will be spent versus the damages that might be recovered.

When evaluating the financial viability of a case, vocational experts and economists will consider the circumstances of the case in terms of the unique aspects of the claimant.  The earning potential of the patient, whether the person was already retired, and which insurance company is involved are some of the other factors the economists must take into account.

Despite the fact that all four elements of a case can be proven, many attorneys hesitate to take cases that will not yield a large financial award for their clients.  Preparing a case for trial can be emotionally taxing and time consuming, and some attorneys refuse to bear these burdens for minimal benefit. Medical Malpractice Assignment Paper

Medical malpractice can arise in many different ways and in many different health care settings. But it’s important to keep in mind that not every situation in which something goes wrong — or in which the patient’s health condition worsens — rises to the level of a viable case of medical malpractice.  In this article, we’ll examine a few treatment scenarios that would likely be considered medical malpractice, and a few that wouldn’t.


When It May Be Malpractice


In the medical  community, negligence occurs when a  doctor provides sub-standard care to a patient — in other words, fails to provide the type and level of care that a prudent, local, similarly-skilled and educated doctor would provide in similar circumstances.

Negligence that rises to the level of medical malpractice can occur in a number of different situations, including the failure to diagnose a harmful condition, the failure to properly advise a patient of the serious risks of certain treatment, and unacceptable errors during the performance of surgery and other procedures.

Doctors aren’t perfect, and medical malpractice laws do not require perfection. Mistakes can and will occur.  But if a doctor’s  error  falls below the applicable medical standard of care —  the mistake may rise to the level of  malpractice. A lot of medical malpractice cases turn on these questions: What was the medical standard of care in the situation in question? And did the defendant adhere to or deviate from that standard? Both sides of the case (doctor and patient) will likely turn to medical experts to try to bolster their  arguments.Medical Malpractice Assignment Paper


It’s a rarity in the medical world, but  in some instances  a doctor’s action (or inaction)  may be considered reckless. For example, a doctor who performs surgery or some other risky medical procedure while under the influence of drugs or alcohol will likely be said to have acted recklessly. Or a doctor may be charged with administering potentially lethal levels of medication to a patient in contravention of accepted medical practices, as in the 2011 criminal case of Dr. Conrad Murray  (Michael Jackson’s doctor).

In this context, recklessness may be considered an extreme form of negligence (as described in the section above) in which the doctor’s actions are so far below the accepted norm in the medical field that the patient is placed in serious risk of suffering significant harm.

When It’s Not

Patient’s Condition Gets Worse

A  doctor cannot be said to have  committed medical  malpractice simply because a patient’s condition became worse during the course of treatment. Sometimes a doctor is unable to treat (let alone cure)  an illness, and even when a certain condition is considered treatable, there is no  guarantee that every patient will respond to treatment in every situation. As long as the doctor acted with reasonable care and skill in choosing and carrying out a course of treatment, typically no  medical malpractice  can be said to have  occurred,  even when a patient’s condition takes a (sometimes unexpected) turn for the worse.    Medical Malpractice Assignment Paper

Condition Untreatable

Similarly,  since not all illnesses and health problems  are treatable, a doctor who correctly diagnoses a health problem — and makes sound decisions in deciding how to proceed with the patient’s care —  cannot be said to have  committed malpractice simply because the patient’s condition is not treatable, or is terminal. Simply put, medical malpractice laws aren’t in place to offer a remedy for unfortunate (but  sometimes unavoidable) health care outcomes such as terminal illnesses and deaths. They’re in place to provide legal protection when the treatment that a patient is  given  falls short of  acceptable standards of medical care.

These Are Challenging Cases

Even armed with the information in this article, you may still have questions about whether or not your doctor’s conduct might be considered malpractice. Since medical malpractice cases often  turn on  complex  questions  that aren’t easily answered without a medical degree and years of experience treating patients, you may want to discuss  your case with a medical malpractice attorney.

Every decade or so, the United States is seized with a fervor to reform medical malpractice. Unfortunately, this zest is typically motivated by circumstances that have little to do with the fundamental problems of medical malpractice, and the proposed changes to the system do not address the true flaws. A well-functioning malpractice system should focus not only on how to compensate patients for medical errors but also on how to prevent these errors from occurring in the first place.

The United States has faced a medical malpractice “crisis” three times since 1970. Each of these crises was precipitated by conditions that created a “hard” market: decreased insurer profitability, rising insurance premiums, and reduced availability of insurance. And each time the crisis became a polarized battle between trial lawyers on one side and organized medical groups and insurers on the other. On the one side, stakeholders link the crisis to “runaway juries” and “greedy lawyers.” On the other are those who blame interest rates and possibly insurer pricing practices. If one attributes the crisis to falling interest rates and bad investments in the stock market, the policy implications are markedly different than if soft-heated and cognitively limited juries and ambulance-chasing lawyers are blameworthy.Medical Malpractice Assignment Paper

In the end, calm is returned, but the situation of patients is not improved. We are left with a system in which most victims of medical error are not compensated for their losses and in which the overall quality of care is not what it might be.

As a first step in tackling the real problems of medical errors and mediocre quality assurance, we need to debunk the popular misconceptions about the problems with the medical malpractice system. Once these ferocious but ultimately pointless conflicts are defused, we can begin to think about fundamentally reconstructing the system with an eye toward improving the quality of care by giving practitioners effective incentives to deliver the services that people need. There are a variety of options for reform; one of them, called enterprise insurance, has the potential to provide the initiative for systemic change.

Pervasive myths

Many myths about medical malpractice dominate the public discourse. These myths reinforce misinformation and are used to justify statutory changes that benefit certain stakeholders but are not in the broader public interest. Five of the most common are: medical care is costly because of malpractice litigation; only “good” doctors are sued; there are too many medical malpractice claims; dispute resolution in medical malpractice is a lottery; and medical malpractice claimants are overcompensated for their losses.

The high cost of personal health services in the United States is frequently attributed to litigation and the high cost of malpractice insurance. This assumes that premiums and outlays for awards have risen appreciably and constitute a major practice expense. The data, however, do not show appreciable increases over long time periods. Between 1970 and 2000, mean medical malpractice premiums went from 5.5 to 7.5% of total practice expenses. This is not the case for damage awards; payment per claim has increased substantially since the mid1990s. However, relationships between medical malpractice premiums, claims frequency, mean payment size, and total payments are complex and assumptions should not be made based on a single indicator.Medical Malpractice Assignment Paper

Some critics of medical malpractice contend that being at the cutting edge technologically makes a physician more vulnerable to being sued. There is no empirical evidence that being sued is an indicator of superior performance. However, there is evidence that physicians with no claims histories were rated by their patients as being, or at least appearing to be, more understanding, more caring, and more available. Overall, it is untrue that only good doctors are sued, but at the same time, being sued is not a marker of being a bad doctor either.

The myth that there are too many malpractice claims is a bit more complex. There are two path-breaking studies showing that there are both too many and too few malpractice claims. The first of these studies was conducted in California in 1974. The second, the Harvard Medical Practice Study, was conducted in New York in 1984. In both studies, surveys of medical records of hospitalized patients were conducted to ascertain rates of adverse events attributable to provision of medical care to these patients and rates of adverse events due to provider negligence, termed “negligent adverse events.” The California study revealed that of the 5% of patients who experienced an adverse health event while in the hospital, 17% suffered a negligent adverse event. In New York, the corresponding rates were 4% for adverse events, of which 28% were negligent adverse events. The authors found that “invalid” claims, those not matching the study’s determination of liability, outnumbered valid claims by a ratio of three to one. However, they also found that only 2% of negligent adverse events resulted in medical malpractice claims. There were 7.6 times as many negligent injuries as there were claims. Thus, there were errors in both directions: Individuals filed too many invalid claims and not enough valid claims.Medical Malpractice Assignment Paper

The public’s view of juries leads to the inference that outcomes of litigation are often random. Actual data, however, leads to the opposition conclusion: Outcomes are not random. There is a definite relationship, albeit an imperfect one, between independent assessments of liability and outcomes of legal disputes alleging medical malpractice. One study estimated that payment is made in 19% of malpractice claims when there is little or no evidence of errors. In contrast, when the evidence of an error is virtually certain, payment occurs 84% of the time. Using the results of this study, claims not involving errors accounted for 13 to 16% of the system’s total monetary cost. The way one views this percentage (substantial or small) depends on where one draws the line between error and no error. Unfortunately, the New York study conclusions do not stress or even mention that the estimates of error are subject to a very high degree of uncertainty.

Similar to the myth that malpractice claims are decided without regard to evidence of negligence, the myth that most plaintiffs are overcompensated for their injuries is pervasive. However, a comparison between the cost of injuries incurred by claimants and compensation actually received revealed that medical malpractice claimants on average are under compensated. In one study, compensation exceeded cost by 22% for claimants who received compensation at verdict, whereas 26% percent received no compensation at all. On average, including those cases for which no compensation was received, compensation amounted to about half of monetary loss. Even including compensation for non monetary as well as monetary loss, compensation fell far short of injury cost. Nevertheless, this does not eliminate the possibility that compensation was excessive in selected cases.Medical Malpractice Assignment Paper

Reconstructing the system

In principle, medical malpractice should be a quality-assurance mechanism; in practice, it falls far short of achieving this goal. For one thing, there is no empirical evidence that the threat of medical malpractice makes health care providers more careful. Also, meting out compensation is very expensive. Sadly, medical malpractice “tort reform” has aimed to save medical malpractice premium dollars rather than make it an effective mechanism for assuring quality and efficiently compensating injury victims. For example, a popular but misguided tort reform, caps on damages, has worked to reduce payments by medical malpractice insurers and create premiums below what they otherwise would have been, but caps have not altered the incentives, except perhaps to discourage attorneys from representing medical malpractice plaintiffs, even those with valid claims. If there is a benefit to caps, it is in redistributing income from injury victims and their attorneys to health care providers rather than in improving quality of care or markedly reducing rates of unnecessary tests and health care costs more generally. It seems unlikely that any savings in medical malpractice insurance premiums would accrue to patients as taxpayers and health insurance premium payers. Organized medicine plausibly supports caps primarily as a response to pressures from its constituency for financial relief.

Although the current system has many flaws, there is also a brighter side. First, contingency fees for plaintiffs’ attorneys give patients who are unsatisfied with outcomes a mechanism for addressing their grievances that may not be possible through other channels. The regulatory apparatus, which has a responsibility for safeguarding the quality of personal health services, is sometimes controlled or substantially influenced by health care providers and health care regulators who may be unresponsive to patients’ complaints. Second, the U.S. jury, despite its limitations, gives ordinary citizens a role in the dispute-resolution system. Although jurors are only rarely scientists, physicians, or other health care professionals, they reflect society’s values. Third, even during the crises when substantial increases in malpractice premiums occurred, the premiums remain a tiny component of total health care costs. Viewing long-term secular trends in medical malpractice payments and premiums rather than the short time periods during which there has been substantial growth in premiums reveals that increases in payments and premiums are rather modest, only slightly higher than the changes in prices in general. Finally, the current malpractice system does a good job of identifying some real errors.Medical Malpractice Assignment Paper

However, the current system has serious deficiencies, just not the same as those typically depicted in the media. First, unlike other fields of personal injury tort, there is no empirical evidence that the threat of medical malpractice lawsuits deters injuries. This is a very serious deficiency, particularly because injury deterrence is typically listed as a goal, perhaps the primary goal, of tort liability. Second, tort liability focuses on the mistakes of individual providers, but errors frequently reflect simultaneous omissions or misjudgments on the part of several individuals. Third, most medical errors do not result in malpractice claims. As a result, the signal from tort to health care providers is insufficiently precise or even wrong. Fourth, compensation to injured patients is typically less than what they deserve based on the loss attributable to their injuries. Litigation is an extremely inefficient system for compensating injury victims. Various types of insurance, such as health and disability insurance, are much more efficient in distributing compensation to persons who have incurred a loss from receiving less than appropriate care.Medical Malpractice Assignment Paper

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