Medical malpractice is a professional negligence by acts or omissions by healthcare providers in which the care provided is below the standard of practice accepted in the medical community and causes injury or death to the patient, with most cases involving medical errors. Medical malpractice claims, when pursued in US courts, are processed as a civil suit. Sometimes medical malpractice is also a criminal act, as in the case of Michael Jackson's death.
Medical professionals can obtain professional liability insurance to offset the cost of lawsuits based on medical malpractice. Further establishment of the provisions of intent or malice can be applied if applicable.
Video Medical malpractice in the United States
Frequency and cost of medical error
Back in 1984, extrapolation statistics from relatively few records in only a few states of the United States estimated that between 44,000-98,000 people each year died in hospital due to medical errors. Much work has been done since then, including work by study authors who moved from that low estimate in the 1990s. For example, the Centers for Disease Control and Prevention now says that 75,000 patients die every year, in hospitals alone, from infections alone - only one cause of danger in just one type of care setting. Of all the causes there are many other studies, including "Estimated New Hospital-Based, Hospital-Based Evidence Damage" by John T. James, PhD who estimates 400,000 unnecessary deaths annually in hospitals alone. Using these numbers, medical malpractice is the third leading cause of death in the United States, just behind heart disease and cancer. Less than a quarter of the treatments occur in hospitals. In all treatment settings, the amount is higher.
Another study noted that approximately 1.14 million patient safety incidents occurred among 37 million hospitalizations in the Medicare population during 2000-2002. Hospital costs associated with medical errors were estimated at $ 324 million in October 2008 alone.
Approximately 17,000 malpractice cases are filed in the US each year.
Maps Medical malpractice in the United States
Medical malpractice claim
The parties
Plaintiff is a patient, or a legally appointed party acting on behalf of the patient, or - in case of a wrong death suit - the executor or administrator of the property of the deceased patient.
The defendant is a healthcare provider. Although 'healthcare providers' usually refer to doctors, the term includes medical care providers, including dentists, nurses, and therapists. As illustrated in the Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex 2003), "following orders" may not protect other nurses and non-doctors from liability when taking negligent actions. Depending on the responsibility of the company's direct representation or negligence, claims may also be filed against hospitals, clinics, managed care organizations or medical firms for the errors of their employees and contractors.
General claims
In 2013, BMJ Open conducted a study in which they found that "failure to diagnose" constitutes the lion's share of medical malpractice claims filed against healthcare professionals. Furthermore, this study found that the most common result of this omission is the death of the patient. The other most common malpractice categories include negligent treatment and failure to warn.
Thus, when a patient claims an injury as a result of professional medical care, the malpractice case will most often be based on one of three theories:
- Failure to diagnose: a medical professional is suspected of having failed to diagnose an existing medical condition, or has provided a false diagnosis for a patient's medical condition.
- Careless treatment: a medical professional is alleged to have made a mistake that a competent professional in the same position will not do it.
- Failure to alert: a medical professional is suspected of treating a patient without prior warning to the patient about known risks and obtaining patient consent for treatment.
Case elements
A plaintiff must establish the five elements of negligent tort for successful medical malpractice claims.
- Obligations payable: legal liability exists when a hospital or health care provider cares for patient care or care.
- Task has been violated: the provider failed to adapt to the relevant standard treatment.
- Violations cause injuries: Job violations are a direct cause and a direct cause of injury.
- Deviations from accepted standards: It should be shown that the practitioner acts in a manner contrary to generally accepted standards in his profession.
- Further formation of intent or malice if applicable.
- Damage: Without damage (losses that may be money or emotional), there is no basis for claims, regardless of whether the medical provider is negligent. Likewise, damage can occur without negligence, for example, when a person dies from a fatal illness.
In cases involving suicide, doctors and especially psychiatrists may have different standards than other defendants in claims of lawsuit. In most cases of suits, legal suicide is seen as an act that terminates the chain of causality. Although the defendant may be deemed negligent of another person's suicide, he or she is not liable for damages that occurred after the act. Exceptions are made for doctors who have found malpractice leading to suicide, with the damage assessed on the basis of losses that may prove to increase after suicide.
Trial
Like all other suit cases, the plaintiff or their lawyer filed a suit in court with appropriate jurisdiction. However, unlike other lawsuit cases, many countries require plaintiffs to take specific steps before a medical malpractice lawsuit can be filed, such as giving the defendant with prior notice of intent to prosecute, obtaining and filing with court certificate services from a qualified medical expert who proves the validity of the cause of the plaintiff's action, filed a claim with a panel of legal and medical experts for evaluation, or participated in mediation in an attempt to resolve the claim without litigation.
Between filing a lawsuit and trial, the parties are requested to share information through the discovery. Such information includes interrogatories, requests for documents and deposition. If both parties agree, the case can be resolved pre-trial with the terms negotiated. If the parties do not agree, the case will proceed to court.
Plaintiffs have a burden of proof to prove all elements with a greater amount of evidence. During the trial, both parties will usually present experts to testify on the standard of care required, and other technical issues. The fact-finding (judge or jury) should consider all the evidence and determine which side is the most credible.
The fact-finders will make decisions for the applicable parties. If the plaintiff wins, the fact finder will assess the damage in the parameters of the judge's instructions. The verdict was subsequently reduced to a court ruling. The losing party can move for a new trial. In some jurisdictions, plaintiffs who are dissatisfied with a small appraisal may move for the additer. In most jurisdictions, a defendant who is dissatisfied with a large decision may move to remittitur. Both parties may appeal the decision.
Expert testimonial
Expert witnesses must be qualified by the Court, based on the qualifications of the expert candidate and the standards established by the legal precedent. To qualify as an expert in a medical malpractice case, one must have sufficient knowledge, education, training, or experience on specific issues before the court to qualify an expert to provide a reliable opinion on the relevant issue. Qualified experts are not the deciding factor, whether the individual will qualify, although they are certainly important considerations. Expert testimony is not qualified "just because someone with a certificate says so" ( United States v. Ingham , 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to the appropriate qualifications of the expert, the testimony should meet certain criteria for reliability. In the United States, two models for evaluating the testimony being put forward are used:
A more general approach (and some more trustworthy believers) used by all federal courts and most state courts is the 'gatekeeper' model, which is a formulated test of US Supreme Court cases. Daubert v. Merrell Dow Pharmaceuticals (509 US 579 [1993]), General Electric Co. v. Joiner (522 US 136 [1997]), and Kumho Tire Co. v. Carmichael (526 US 137 [1999]). Before the trial, Daubert's trial will take place before a judge (without a jury). The court judge should consider the evidence presented to determine whether "an expert's testimony rests on a reliable and relevant basis for the task at hand." (Daubert, 509 US at 597). Daubert's trial considered 4 questions about the testimonies presented by an expert candidate:
- Whether "theory or technique... can (and has) been tested"
- Have "been reviewed by peer reviews and publications".
- Either, in the case of a particular technique, there is a "known or high potential" error rate
- Is there a "standard that controls engineering operations".
Some state courts are still using Frye's tests that rely on scientific consensus to assess the acceptance of new scientific evidence. Daubert firmly rejected the incorporation of previous federal rules on the Frye test. (Daubert, 509 US at 593-594) Expert testimony that will pass the Frye test is now exempt under the stricter requirements of the Federal Rules of Evidence as interpreted by Daubert.
In the view of Daubert and Kuhmo, preparation of pre-trial from expert witnesses is very important. The problem with Daubert is that the presiding judge may receive testimony from highly contested data. Judges can expand the limits contained in the precedent of "school of thought". Self-published papers can be pledged as a basis for expert testimony. Non-peer rated journals may also be accepted in the same way. The only criterion is the opinion of a single judge who, in all likelihood, has no relevant scientific or medical training.
Many countries also require that a certificate of reward before a malpractice suit is filed requiring a report from a medical doctor that the doctor is accused of negligence of violating the standard of care and causing injury to the patient.
Damage
Plaintiff's damages may include compensation and, in some states and under qualifying conditions, indemnification.
Compensatory damage is economic and non-economic.
- Economic damages include financial losses such as wage loss (sometimes called loss of income capacity), medical expenses and lifelong maintenance costs. This damage can be assessed for past and future losses.
- Non-economic damage is assessed for injury itself: physical and psychological damage, such as loss of vision, loss of limbs or organs, reduced enjoyment of life due to disability or loss of loved ones, severe pain and emotional distress. The punitive penalty is not available in all states and, if permitted, is usually only granted in cases of indecent and reckless acts.
Statute of limits
There is only a limited time in which medical malpractice suits can be filed. In the United States, this deadline is fixed by law. In a civil legal system, similar provisions are usually part of a civil code or criminal code and are often known collectively as the "prescription period" or "prescriptive period." The length of time period and when the period starts to vary according to the jurisdiction and type of malpractice. Therefore, each country has a different time limit. For example, in Pennsylvania, there is a two-year restriction law, but in other countries the restriction period may be longer. Most states have special provisions for minors with the potential to extend the statute of limitations for minors who have been injured due to medical malpractice.
Malpractice and compensation properties
A 2011 study in the New England Journal of Medicine reported that 75% of doctors in "low risk" specialties and nearly 100% of doctors in "high risk" specialties can expect to face malpractice claims. during their career. However, the authors also note that most of the malpractice claims do not result in compensation payments.
Most (73%) of the completed malpractice claims involved medical errors. A 2006 study concluded that claims without evidence of mistakes "are not uncommon, but most [72%] are denied compensation, most [54%] go towards litigation for their mistakes and payments." The overhead cost of malpractice litigation is too high. " The doctor checked the records of 1452 closed malpractice claims. Ninety-seven percent are associated with injury; of them, 73% were compensated. Three percent of claims are not related to injury; of them, 16% were compensated. 63% is associated with errors; of them, 73% were compensated (an average of $ 521,560). Thirty-seven percent are not related to errors; of them, 28% were compensated (an average of $ 313,205). Unrelated claims account for 13 to 16% percent of total cost. For every dollar spent on compensation, 54 cents goes to administrative costs (including lawyers, experts, and courts). Claims involving errors account for 78 percent of administrative costs.
A 2004 study of medical malpractice claims in the United States examining primary care malpractice found that although the negligence incidents in hospitals resulted in a greater proportion of severe outcomes, the total number of errors and deaths due to larger errors for outpatient settings. No single medical condition is associated with more than five percent of all claims of negligence, and one-third of all claims are the result of misdiagnosis.
Male doctors nearly two and a half times increase the likelihood of taking medico-legal action against them over female doctors, consistent results over the years and found internationally.
Arguments on medical liability systems
Groups of doctors, patients, and insurance companies have criticized medical malpractice litigation as expensive, hostile, unpredictable, and inefficient. They claim that the cost of medical malpractice litigation in the United States continues to increase by almost 12 percent annually since 1975. Recent research from the same source has found that tort costs as a percentage of GDP fell between 2001 and 2009, and are now at the lowest level since 1984. Jury Verdict Research, a database of plaintiffs and defense rulings, said the award in case of medical responsibility increased 43 percent in 1999, from $ 700,000 to $ 1,000,000. However, more recent research from the US Department of Justice has found that median medical malpractice in the state ranges from $ 109,000 to $ 195,000.
These critics assert that this tariff increase causes physicians to get out of business or move to countries with more favorable tort systems. However, not everyone agrees that medical malpractice lawsuits solely cause this tariff increase. A 2003 report from the General Accounting Firm found many reasons for this tariff increase, with medical malpractice lawsuits being the main driver. Despite noting some of the reasons for an interest rate hike, the report goes on to state that "GAO found that losses on medical malpractice claims - which make up the lion's share of insurance costs - appear to be a major driver of long-term tariff increases." More recent data indicates that the level of medical malpractice is generally no longer up. In 2011, data collected from the industry by the Medical Liability Monitor publication showed that medical malpractice insurance rates have declined for four consecutive years. This decline is seen in the two countries that have enacted tort reforms and in states that have not, led a data familiar actuary to show that patient safety and risk management campaigns have a more significant effect.
The main tort reform proposals are:
- Special medical malpractice court
- Non-economic damage limit
- Reductions in action limiting laws
The majority of Americans support reform of the malpractice system. However, the survey shows that the majority of American public also greatly underestimates the degree of medical error. Recent research shows that while healthcare consumers and healthcare manufacturers are concerned about some of the adverse consequences of health care litigation, health consumers feel that increasing health care litigation may reduce the incentives for negligence on the part of healthcare providers.
At the same time, the study of these claims has found that there is no problem of increasing malpractice decisions and insurance costs that drive doctors out of business.
Nontraditional Approach to Responsibility Update
The traditional approach to liability reform is to limit the amount of damage that the plaintiff can recover (as noted above). Several new approaches to addressing medical malpractice have been investigated.
Communication and Resolution Program: When medical errors are identified, patients are approached by doctors and/or health care systems and they simultaneously arrive at the settlement. Some laws have been passed to facilitate communications and resolutions (mandatory presidential notification laws, state-facilitation laws and dispute resolution laws).
Safe Harbors for Adherence to Practice Guidelines: This approach provides a defense for physicians if they follow pre-approved clinical practice guidelines.
Directed directives: A group of judges with expertise in medical malpractice meet with each party's lawyers and negotiate settlements between the parties.
Administrative Compensation: Sweden and New Zealand create health courts. Claims submitted to this court have the authority to resolve the claim. Lawyers are not required and claims are settled on the opinions of neutral experts. Compensation is provided on a predetermined schedule and based on the level of injury.
Recovery limit
Many jurisdictions place non-economic damage caps that limit the number of victims of medical malpractice can recover from negligent doctors, purportedly in an effort to reduce hospital and physician costs.
In California, for example, recovery for non-economic damage is limited to $ 250,000. According to the California Supreme Court, "non-economic losses compensate the plaintiff for 'pain, suffering, discomfort, physical damage, disability and other non-resident damage [ Section 1431.2, subdivision (b) (2) also defines non-economic damages as' subjective, non-monetary damages including, but not limited to, pain, suffering, discomfort, mental suffering, emotional distress, loss of society and friendship, consortium, injury to reputation and humiliation. "Tort reform advocates argue that countries have enacted the law to keep health care costs low, in addition to helping curb medical malpractice litigation, according to the California Supreme Court, non- -the state's economy is "not a legislative effort to estimate the actual damage suffered by the plaintiff, but rather an attempt to control and reduce the cost of medical malpractice insurance by placing a predictive, uniformly limiting the liability of the defendant for non-economic damages. "
Texas law creates the most difficult "hurdles" in the United States for plaintiffs to successfully recover damages from medical malpractice, even for such objective cases like emergency room exposure to Ebola virus disease.
Texas law and effects
Texas passed a "lawsuit reform" law that came into effect on September 1, 2003. It limits non-economic damage (eg, damage to pain and suffering) in most cases of malpractice to $ 250,000 in all healthcare providers and $ 250,000 for health facilities, with a limit of two facilities per claim. In 2013, Texas is one of 31 states to limit non-economic damage.
After 2003, the level of medical malpractice insurance was reduced in Texas. However, Center of Justice & amp; Democracy at the New York Law School reports that tribal decline may be due not to the lawsuit lawsuit, but due to broader trends, such as "political pressure, the size of the previous interest rate hike, and the impact of industrial economic cycles, caused prices to drop everywhere in this country. "Countries that do not wear hats for malpractice damage, such as Connecticut, Pennsylvania, and Washington, have experienced a reduction or stabilization in malpractice rates as well.
Various studies have shown that Texas's law of reform has no effect on the cost of health care or the number of physicians practicing in the state. A February 2014 study found "no evidence to support" claims that "there has been a dramatic increase in doctors who moved to Texas because of an improved climate of responsibility." The study found that this is true "for all patient care physicians in Texas, high-risk malpractice specialists, primary care physicians, and rural doctors.
The plaintiff's lawyer said that Texas law prevents patients from getting compensation or damages even in cases where patients clearly deserve it. In particular, the standard of "accidental and dishonest" negligence "for emergency care, which requires that the dangers on the patient be intentional, makes it impossible to win cases where the danger is clearly negligent but not accidental.
Financial Impact
A Newspaper Bureau of National Economic Research in August 2003 by Katherine Baicker and Amitabh Chandra found that (1) "an increase in malpractice payments made on behalf of doctors does not seem to be the driving force behind premium increases"; (2) "increased malpractice costs (both overall premiums and subcomponent factors) do not appear to affect the overall size of the physician's workforce, although they may impede marginal entry, increase marginal outcomes, and reduce rural physicians work"; and (3) "there is little evidence of increased use of care in response to malpractice obligations at the state level, although there may be some improvement in screening procedures such as mammography."
A 1996 study by Daniel P. Kessler and Mark McClellan analyzed data on old Medicare recipients treated for two serious heart diseases in 1984, 1987, and 1990 determined that "malpractice reforms that directly reduce the provider's liability leads to a 5 to 5 reduction 9 percent in medical expenditures without substantial effects on death or medical complications. "
A 2004 Congressional Budget Office report (CBO) using data from private actuary companies and the Medicare and Medicaid Service Center (CMS) found that malpractice costs (excluding "defense drugs") accounted for less than 2 percent of health care spending. PriceWaterhouseCoopers report of 2006 for the American Health Insurance Plan (health insurance trade association) uses 2 percent and extrapolated from Kessler and McClellan's report to estimate that the combined cost of insurance and defensive drugs for 10 percent of total health care costs in the US
In 2009, the CBO "concluded that implementing a package of five malpractice reforms would reduce national health spending by about 0.5 percent."
A study by Michelle M. Mello and others published in the journal Healthcare in 2010 estimated that the total annual cost of the medical liability system, including "defense drugs," is about 2.4 percent of total US health care spending. The authors note that "this is less than some imaginative estimates put forward in the health reform debate, and it represents a fraction of total health care spending," although it is not "trivial" in absolute terms.
A study by RAND Corp researchers published in October 2014 at the New England Journal of Medicine concluded that laws that prohibit medical-malpractice clothing do not reduce the number of "defense drugs" or reduce health care costs. The researchers, led by Daniel A. Waxman, examined 3.8 million records of Medicare patients from the hospital emergency department from 1997 to 2011, comparing treatments in three states that enacted strict malpractice reform laws about a decade earlier (Georgia , Texas, and South Carolina) to care in neighboring countries that do not enact the law. The study found that the law has no effect on whether doctors order resource-intensive treatment (eg, CT scans or MRI and hospitalization).
See also
- Medical law
- Medical error
- There's never been an event
- Patient harassment
- Canterbury v. Spence
References
External links
- National Practitioner Data Bank (NPDB) Medical Malpractice Payment Report
Source of the article : Wikipedia
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