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 inc ...

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 b ...

, 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 Injury is physiological damage to the living tissue of any organism, whether in humans, in other animals, or in plants. Injuries can be caused in many ways, including mechanically with penetration by sharp objects such as teeth or with ...

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 disability, cognitive, Developmental disability, d ...

, unusual

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

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 (psyc ...

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

Medical malpractice law

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdictions, medical malpractice liability is normally based on the

tort A tort is a civil wrong, other than breach of contract, 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 cri ...

negligence Negligence ( Lat. ''negligentia'') is a failure to exercise appropriate care expected to be exercised in similar circumstances. Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...

. 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 an applied ethics principle that a person must have sufficient information and understanding before making decisions about accepting risk. Pertinent information may include risks and benefits of treatments, alternative treatme ...

, 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 work (human activity), works in a specified professional activity. The term also describes the standards of education and training that prepare members of the profession with the partic ...

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 non-physician practitioner. While these job titles are used internationally, there is significant variation in training and scope of practice from country to country, and sometimes be ...

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) is the final court of appeal for all civil cases in the United Kingdom and all criminal cases originating in England, Wales and Northern Ireland, as well as some limited criminal cases ...

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 was spent on clinical negligence claims by the

NHS The National Health Service (NHS) is the term for the publicly funded health care, publicly funded healthcare systems of the United Kingdom: the National Health Service (England), NHS Scotland, NHS Wales, and Health and Social Care (Northern ...

in 2016/17. 36% of that was legal costs. In January 2018,

NHS England NHS England, formally the NHS Commissioning Board for England, 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 si ...

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 the 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 or plaint note, 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 ag ...

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 The Accident Compensation Corporation (ACC) () is the New Zealand Crown entity responsible for administering the country's No-fault insurance, no-fault accidental injury compensation scheme, commonly referred to as the ACC scheme. The scheme pro ...

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.

Demography

Medico-legal action across multiple countries is more common against male than female doctors (

odds ratio An odds ratio (OR) is a statistic that quantifies the strength of the association between two events, A and B. The odds ratio is defined as the ratio of the odds of event A taking place in the presence of B, and the odds of A in the absence of B ...

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