Medical

malpractice In the law of torts, malpractice, also known as professional negligence, is an "instance of negligence or incompetence on the part of a professional".Malpractice definition, Professionals who may become the subject of malpractice actions ...

is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury or death to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare or health management. An act of medical

usually has three characteristics. Firstly, it must be proven that the treatment has not been consistent with the

standard of care In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care. The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been ...

, which is the standard medical treatment accepted and recognized by the profession. Secondly, it must be proven that the patient has suffered some kind of

injury An injury is any physiological damage to living tissue caused by immediate physical stress. An injury can occur intentionally or unintentionally and may be caused by blunt trauma, penetrating trauma, burning, toxic exposure, asphyxiation, or ...

due to the negligence. In other words, an injury without negligence or an act of negligence without causing any injury cannot be considered malpractice. Thirdly, it must be proven that the injury resulted in significant damages such as

disability Disability is the experience of any condition that makes it more difficult for a person to do certain activities or have equitable access within a given society. Disabilities may be cognitive, developmental, intellectual, mental, physical, ...

, unusual

pain Pain is a distressing feeling often caused by intense or damaging stimuli. The International Association for the Study of Pain defines pain as "an unpleasant sensory and emotional experience associated with, or resembling that associated with, ...

suffering Suffering, or pain in a broad sense, may be an experience of unpleasantness or aversion, possibly associated with the perception of harm or threat of harm in an individual. Suffering is the basic element that makes up the negative valence of a ...

, hardship, loss of income or a significant burden of medical bills.

Medical malpractice law

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

jurisdictions, medical malpractice liability is normally based on the

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishab ...

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as ...

. Although the law of medical malpractice differs significantly between nations, as a broad general rule liability follows when a health care practitioner does not show a fair, reasonable and competent degree of skill when providing medical care to a patient. If a practitioner holds himself out as a specialist a higher degree of skill is required. Jurisdictions have also been increasingly receptive to claims based on

informed consent Informed consent is a principle in medical ethics and medical law, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatm ...

, raised by patients who allege that they were not adequately informed of the risks of medical procedures before agreeing to treatment. As law varies by jurisdiction, the specific professionals who may be targeted by a medical malpractice action will vary depending upon where the action is filed. Among

professional A professional is a member of a profession or any person who works in a specified professional activity. The term also describes the standards of education and training that prepare members of the profession with the particular knowledge and ski ...

s that may be potentially liable under medical malpractice laws are: * Physicians, surgeons, psychiatrists and dentists. * Nurses, midwives, nurse practitioners, and

physician assistant A physician assistant or physician associate (PA) is a type of mid-level health care provider. In North America PAs may diagnose illnesses, develop and manage treatment plans, prescribe medications, and may serve as a principal healthcare provi ...

s. * Allied health professionals - including physiotherapists, osteopaths, chiropractors, podiatrists, occupational therapists, social workers, psychologists, pharmacists, optometrists and medical radiation practitioners. Among the acts or omissions that may potentially support a medical malpractice claim are the failure to properly diagnose a disease or medical condition, the failure to provide appropriate treatment for a medical condition, and unreasonable delay in treating a diagnosed medical condition. In some jurisdictions a medical malpractice action may be allowed even without a mistake from the doctor, based upon principles of

, where a patient was not informed of possible consequences of a course of treatment and would have declined the medical treatment had proper information been provided in advance.

United Kingdom

The

Supreme Court of the United Kingdom The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unit ...

decided in 2018 that the duty of care extended to information given to patients by clerical staff of a healthcare provider, such that a medical negligence case might be predicated upon an administrative mistake. A patient at Croydon Health Services NHS Trust's emergency department had severe brain damage having been given misleading information by staff at reception. He was told that he would be seen by a doctor in four or five hours and left the hospital, when actually he would be seen inside 30 minutes by a triage nurse. £1.7 billion on was spent on clinical negligence claims by the NHS in 2016/17. 36% of that was legal costs. In January 2018,

NHS England NHS England, officially the NHS Commissioning Board, is an executive non-departmental public body of the Department of Health and Social Care. It oversees the budget, planning, delivery and day-to-day operation of the commissioning side of the ...

announced that NHS hospitals in England would no longer provide office or advertising space for lawyers who encourage people to take the NHS to court. In 2019/20 11,682 medical negligence claims and reported incidents were received by the NHS – an increase of 9.3% on 2018/19. In the same time, the total value of clinical negligence claims under th
CNST scheme
reduced from £8.8 billion, to £8.3 billion.

Litigation

In many jurisdictions, a medical malpractice lawsuit is initiated officially by the filing and service of a

summons A summons (also known in England and Wales as a claim form and in the Australian state of New South Wales as a court attendance notice (CAN)) is a legal document issued by a court (a ''judicial summons'') or by an administrative agency of governm ...

and

complaint In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...

. The parties subsequently engage in

discovery Discovery may refer to: * Discovery (observation), observing or finding something unknown * Discovery (fiction), a character's learning something unknown * Discovery (law), a process in courts of law relating to evidence Discovery, The Discovery ...

," a process through which documents such as medical records are exchanged, and depositions are taken by parties involved in the lawsuit. A deposition involves the taking of statements made under oath about the case. Certain conversations are not discoverable due to issues of privilege, a legal protection against discovery, but most conversations between the parties and witnesses are discoverable.

Consequences

Consequences for patients and doctors vary by country. * In Canada, all provinces except Quebec base medical malpractice liability on negligence, while Quebec follows a civil law system. * Germany permits patients injured by medical negligence to bring a private action against the provider in contract, tort, or both. * Sweden has implemented a no fault system for the compensation of people injured by medical treatment. Patients who want to bring malpractice claims may choose between bringing a traditional tort claim or a no fault claim. * In New Zealand, the Accident Compensation Corporation provides no-fault compensation for victims. * In the United States,

lawsuits may be used to seek compensation for malpractice. Awards of compensation in the United States tend to be much larger than awards for similar injuries in other nations. A no-fault system may provide compensation to people who have medical outcomes that are significantly worse than would be anticipated under the circumstances, or where there is proof of injury resulting from medical error, without regard to whether or not malpractice occurred. Some no fault systems are restricted to specific types of injury, such as a birth injury or

vaccine injury A vaccine adverse event (VAE), sometimes referred to as a vaccine injury, is an adverse event caused by vaccination. The World Health Organization (WHO) knows VAEs as Adverse Events Following Immunization (AEFI). AEFIs can be related to the vacci ...

Demography

Medico-legal action across multiple countries is more common against male than female doctors (odds ratio of 2.45). A 2016 survey of US physicians found that 8.2 percent of physicians under the age of forty reported having been sued for malpractice during their careers, with 49.2 percent of physicians over the age of 54 reporting having been sued.

References