Medical Malpractice

What is Malpractice?

In law, Malpractice is type of tort in which the misfeasance, malfeasance or nonfeasance of a professional under a duty to act fails to follow generally accepted professional standards. It is committed by a professional or her/his subordinates on behalf of a client or patient that causes damages to the client or patient. Perhaps the most publicized forms are medical malpractice and legal malpractice by medical practitioners and lawyers respectively, though accountants (Arthur Andersen) and investment advisors (Merrill Lynch) have been in the news lately.

What is Medical Malpractice?

The medical profession and insurance industries argue that lawsuit abuse increases the cost of health care and threatens access to health care for all Americans. On the other hand, lawyers who handle medical malpractice claims note that the quality of health care in the United States of America is among the best in the world, and they contend that it is largely due to the ability of citizens to obtain an effective judicial remedy when they are victimized by medical malpractice. Insurance companies claim that studies show that very few medical liability lawsuits stem from what they call true malpractice, and they argue that very few cases of actual malpractice end up in suits.


Lawyers note that that is because of the extremely high cost of pursuing medical malpractice claims, which is in part due to the reluctance of physicians to testify against their colleagues, forcing Plaintiff’s lawyers to spend large sums of money for expert witnesses from distant locations. The insurance industry claims that the cost of defensive medicine, in which physicians order tests or treatments for medico-legal rather than clinical reasons, has been documented to be as large as $50 billion per year, but, once again, those involved in the legal system believe that accountability has produced a health care system second to none in the world, and that the extra cost of the best in health care is well worth the additional expense.


“Over 12,000 deaths a year result from unnecessary surgery and approximately 7,000 people die from medication errors in hospitals”


“Medical Malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient”.


Medical Malpractice lawsuits are related to issues file in the court of law alleging various different circumstances leading or causing damage to a patient. The suits may include allegations against medical professionals and cover, but not limited to, misdiagnosis, mistreatment, delayed diagnosis, failure to diagnose, surgical errors, medical errors, or various types of negligence.


Not all errors in medical diagnosis and treatment are necessarily malpractice, because there are certain risks and margins for error that arise inherently in the practice of medicine.


Top Diseases Associated With Medical Malpractice


The top five diseases that receive monetary awards for malpractice, in terms of dollar value, are:


  • Breast cancer
  • Lung cancer
  • Colorectal cancer (including colon cancer and rectal cancer)
  • Heart attack
  • Appendicitis


Surprisingly, the main allegation is a form of misdiagnosis, either delayed diagnosis or mismanagement of diagnostic testing.


Issues and topics related to medical malpractice include:


  • Medication Errors
  • Misdiagnosis
  • Overdoses
  • Surgical Errors
  • Negligence


The Medical Malpractice Claim

The parties


The plaintiff is the patient, a legally designated party acting on behalf of the patient, or by the executor or administrator of a deceased patient’s estate (in the case of a wrongful death suit).


The defendant is the health care provider. Although a ‘health care provider’ usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. Relying on vicarious liability, claims may also be brought against hospitals, clinics, or medical corporations for the mistakes of their employees.


Medical Malpractice | Hospital Malpractice | Elements of Case | Wrongful Death