Medical malpractice is defined as professional negligence by a provider of health care services. Professional negligence means that the treatment failed to meet an accepted standard in the medical field. In many medical malpractice lawsuits, the patient incurs a serious injury or even death as a direct result of a medical error.

What is Medical Error?

Medical error is a preventable detrimental effect of medical treatment. Many medical malpractice lawsuits are the result of medical errors stemming from poor diagnoses or improper treatment.

In 2009, a meta-analysis of literature in the health care industry revealed that the five most commonly misdiagnosed diseases are myocardial infarction, general cardiovascular disease, pulmonary emboli, infection and neoplasm. (1) Misdiagnoses can lead to medical malpractice to the degree that misdiagnoses is related to medical error.

What are the Casualties?

The crux of misdiagnoses resulting in medical error and eventual malpractice lawsuits are related to out-patient care. In fact, the National Institute of Medicine found that approximately 100,000 people die from avoidable medical errors each year. (2) In an effort to combat such negative outcomes, both the public and private sector vowed to increase inpatient safety through more sound diagnoses and an eradication of medical error.

Where does Insurance Factor In?

Although the standards for medical error and medical malpractice vary by the state, there are common ways to mitigate the legal costs of medical malpractice lawsuits. For instance, an insurance professional may issue professional liability insurance to countervail the legal fees and risks of medical malpractice.

Professional liability insurance, or professional indemnity insurance, is a liability insurance that protects companies from the full cost and responsibility of defending against a negligence allegation and civil lawsuit.

Although professional liability insurance does not cover things like criminal prosecution, professional liability insurance does deflect some of the defendant’s legal costs.

What are the Facets of a Successful Case?

The alleging plaintiff must demonstrate four conditions of negligence to successfully argue a malpractice claim. The first two conditions are proving that a service or duty was owed to the client, and that the foundational duty was breached. The latter perhaps refers to medical error or misdiagnosis.

The client must then demonstrate that the breach of duty caused an injury. The last facet of a successfully defended malpractice case is showing damage. Demonstrating damage is important because without a breach of duty and subsequent injury, a malpractice lawsuit will not stand up in court.

For instance, a client may be hit by a bus upon leaving the doctor’s office, but the accident would not be due to medical error. In such a case, the doctor would not be liable for damages and the medical malpractice lawsuit could not be successfully defended. In the foregoing scenario, the doctor did not breach his duties, so the malpractice lawsuit has no basis for continuing to trial.

How does the Trial Proceed?

As with other tort cases, the plaintiff and her attorney file a civil lawsuit in the jurisdiction in which the medical error is alleged to have occurred. After the filing but before the trial, discovery takes place. In the discovery phase, each party may request documents from the other party and perform depositions.

In the event that each side can come to an agreement during the discovery phase, the case is settled before the trial on negotiated grounds. If the case cannot be decided in the discovery phase, then the case will move to trial.

What Happens at Trial?

The alleging plaintiff needs to demonstrate all four facets of malpractice and medical error to successfully shift the burden of proof and receive legal compensation. Typically, each side will attempt to show how the adequate standard of care was present or absent in the client’s allegations of medical malpractice. Experts may be called in during this phase to argue technical details. The trial concludes when a judge or jury weighs all of the evidence, adjudicates credibility and possibly renders compensation to the plaintiff.

What About Compensation?

In legal parlance, the “fact-finder” is the judge or jury weighing all of the evidence and expert testimony. If the evidence meets all four criterion for a malpractice case, then the plaintiff will be awarded compensation. The fact-finder will calculate damages and compensation based on the details of the case.

Although either side may appeal the judge’s decision, the defendant has the option of calling for a retrial. In high-stakes cases, the losing party may request a remittitur. In essence, a remittitur lowers the damages that the jury awarded in a civil lawsuit.

Statute of Limitations?

There is a statute of limitations with malpractice lawsuits, but the statute of limitations varies based on jurisdiction. The type of malpractice lawsuit also impacts the statute of limitations timeframe. Indeed, each of the 50 states has a specific timeframe in which one may successfully file a malpractice lawsuit.