Definition of Medical Malpractice and The Four Elements

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

The Medical Malpractice Claim

The party

The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient's estate. 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. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), "following orders" may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Source: Wikipedia

The Four Elements of a Medical Malpractice Case

Source: Yale New Haven Medical Center: Issues in Risk Management.

In order for a medical malpractice suit to be successful, a claimant must establish the presence of all four of the following elements:

• A duty was owed.
• A duty was breached.
• The breach caused an injury.
• Damages occurred.

Given the importance of medical malpractice in the risk management landscape, and the centrality of the four elements to any malpractice case, an in-depth look at each of the four elements is warranted.

1. A duty was owed:

A legal duty is established whenever a hospital or health care provider undertakes care or treatment of a patient. This duty commences when a health care provider begins any service to the patient (e.g. in the Emergency Department), enters into a contractual relationship with the patient (e.g. when contracting with a HMO or other intermediary), or even answers questions from a patient (e.g. during telephone conversation). A claimant unable to demonstrate the presence of an active physician-patient at the time of alleged injury has no basis to make a malpractice claim.




2. A duty was breached:

A breach of duty here refers to a failure of a health care provider to meet a relevant standard of care for the time and place of the alleged injury. The standard of care is established by expert testimony or, in such cases as retained surgical instruments after operations or burns from improperly applied surgical electrocautery pads (i.e. obvious errors) the doctrine of res ipsa loquitor (literally, "the thing speaks for itself") is invoked thus alleviating the need for expert testimony.




3. The breach caused an injury

The claimant must demonstrate that the failure to conform to the relevant standard of care was a proximate cause of the damaged sustained. Stated another way, it must be established that the physician's negligence led the stated injury. However, proving causation is a tricky business, whether in medical or law, and if a claimant is able to establish association, that maybe interpreted as causation by a sympathetic jury. For example, a physician who refuses to continue caring for a woman who is six months pregnant because of failure to pay may have problems convincing a jury that the baby's birth defects were not caused by lack of prenatal care in the final trimester.





4. Damages occurred

Unless damages of some sort are sustained by the patient, there is no basis for a claim - regardless whether or not the physician was negligent. However, demonstrating some degrees of "pain and suffering" or "emotional distress" in cases claiming non-economic damages leaves much latitude for the claimant to claim some harm. Finally, as a practical matter, damages are usually defined as the estimated monetary equivalent to compensate the injured person for the loss or injury sustained. Damages (there were damages sustained by the patient) can be divided into direct, indirect and punitive. Direct damages include lost earnings, as well as current and future medical expenses. Indirect damages may include pain and emotional distress, and loss of "consortium" (those services performed by a domestic partner including companionship, homemaking, etc., and future reproductive capabilities of either sex). Punitive damages are awarded when conduct is intentionally harmful or grossly negligent (i.e. the intentional or wanton omission of care that would be proper to provide, or the doing of that which would be improper to do).