Keith Mack
Medical malpractice law in the United States is a complex and evolving area of civil law, with a history dating back to English common law. The law defines medical malpractice as any act or omission by a physician that deviates from accepted norms and causes injury to a patient. While the legal system encourages negotiations to resolve disputes without a jury trial, medical malpractice lawsuits are relatively common. The law requires the injured patient to prove four elements: a professional duty owed, breach of duty, injury caused, and resulting damages. Over time, various reform models and alternative dispute resolution methods have been proposed, and the law continues to evolve in response to changing medical practices and societal needs.
| Characteristics | Values |
|---|---|
| Medical malpractice lawsuits in the US | Relatively common |
| Medical malpractice law authority | Individual states, not the federal government |
| Requirements for successful malpractice claims | Patient suffered an adverse event, provider caused the event, provider was negligent |
| Issues with the current system | Slow and costly, fails to compensate injured patients, incentivizes defensive medicine |
| Impact of defensive medicine | Unproductive, not cost-effective, harmful, decline to supply beneficial care |
| Tort reforms | Reduce malpractice liability, reduce healthcare spending, no adverse impact on patient health outcomes |
| New York's changing medical malpractice laws | Impact ability to file a lawsuit, change statute of limitations, compensation recoverable |
| Lavern's Law in New York | Extends the timeframe for filing lawsuits in cases of delayed or misdiagnosis of cancer |
| Public Access to Malpractice Records in New York | Allows patients to access a doctor's professional history and malpractice records |
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What You'll Learn
Medical malpractice law history in the US
The concept of medical malpractice has ancient origins, with the first mentions dating back to the Code of Hammurabi, a Babylonian legal code from 1792 BC. This code established the responsibility of doctors to care for their patients and outlined harsh punishments for causing additional harm. Centuries later, Hippocrates, an Ancient Greek physician, coined the Hippocratic Oath, which included the promise of 'do no harm'. This oath is still used by doctors today, albeit in a revised form.
In the United States, medical malpractice claims began to emerge in the 1800s. During this period, an increase in medical malpractice cases was observed due to many doctors favouring amputation over attempting to treat injured or deformed limbs. The founding of the American Medical Association (AMA) in 1847 aimed to standardise the level of care and enhance physicians' standing in society. However, the number of medical malpractice cases continued to rise, leading to the introduction of medical liability insurance in 1908.
The 1960s marked a critical juncture in the history of medical malpractice litigation in the US, witnessing a surge in medical malpractice claims. This increase was attributed to several factors, including the advent of new and more complex treatments, which carried higher risks of iatrogenic harm. Additionally, changes in the legal landscape removed barriers to lawsuits and altered liability rules, making it easier for patients to pursue legal action. This decade also saw some of the highest medical malpractice payouts, with five cases surpassing $2 million in rewards.
To address the rising incidence of medical malpractice claims, medical professionals advocated for federal intervention and protection. As a result, legislators attempted to strike a balanced approach that would not excessively favour either the plaintiff or the defendant. The legal system in the US is designed to encourage extensive discovery and negotiations between adversarial parties, aiming to resolve disputes without proceeding to a jury trial. To win a malpractice case, patients must prove several elements, including the existence of a professional duty owed to them, a breach of that duty, resulting injuries, and significant damages.
Today, medical malpractice claims rarely go to trial, as disputing parties often reach settlements through arbitration or informal means. The specific laws and procedures governing medical malpractice vary across different states in the US, as each state has the right to legislate independently in this area.
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The current state of medical malpractice law in the US
Medical malpractice lawsuits are a relatively common occurrence in the United States. The law is derived from English common law and was developed by rulings in various state courts. It is traditionally under the authority of individual states and not the federal government, which means that state law governing medical malpractice varies across different jurisdictions, although the principles are similar.
To win monetary compensation for injury related to medical negligence, a patient needs to prove that substandard medical care resulted in an injury. This must be filed within a legally prescribed period, known as the "statute of limitations", which varies from state to state. Once negligence is established, the court calculates the monetary damages that will be paid in compensation. This takes into account both actual economic loss and non-economic loss, such as pain and suffering. To prove negligence, four legal elements must be demonstrated: a professional duty owed to the patient, breach of such duty, injury caused by the breach, and resulting damages.
Medical malpractice cases rarely reach trial, and this is generally true of civil litigation in the United States. The legal system is designed to encourage extensive discovery and negotiations between adversarial parties to resolve the dispute without going to jury trial. In a jury trial, a group of individuals chosen from the public considers the evidence and makes a decision. In a bench trial, a judge or panel of judges makes the decision. In the US, a physician can expect a jury trial in nearly all cases of medical malpractice unless the case is disposed of prior to trial. Under limited circumstances, a medical malpractice case may be filed or moved to a federal court, in which state malpractice law still applies, with federal procedural rules.
There is a growing body of literature that suggests physicians believe that pressure to avoid malpractice litigation leads to "defensive medicine". This is medical practice performed primarily to limit the future risk of a successful lawsuit and only secondarily to adhere to the medical standard of care. This can lead to negative consequences, such as providing unnecessary or harmful care, or declining to supply beneficial care.
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Pros and cons of the existing system
Pros
- The existing system provides a way to ensure that injured patients receive justice and that physicians perform to established standards.
- The legal system is designed to encourage extensive discovery and negotiations between adversarial parties, with the goal of resolving the dispute without going to jury trial.
- The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. This can help to ensure that physicians are held accountable for their actions.
- Money damages, if awarded, can help to compensate the patient for their actual economic loss as well as non-economic loss, such as pain and suffering.
- The system allows for the recovery of damages for the breach of a professional duty owed to the patient.
Cons
- The existing system can lead to \"defensive medicine", where medical practice is performed primarily to limit future risk of a successful lawsuit against the physician, rather than adhering to the medical standard of care. This can result in providing care that is "unproductive, not cost-effective, or even harmful".
- The process of legal discovery and negotiations between parties can be time-consuming and costly, stretching out over years.
- The system does little to help patients injured by physician negligence obtain what research suggests they truly desire: an account of why the harm occurred, an apology from the healthcare professionals involved, information on how similar harms can be avoided in the future, and appropriate restitution for avoidable harm.
- The system varies across different jurisdictions in the United States, which can lead to inconsistencies in the application of medical malpractice law.
- The system does not appear to provide incentives for appropriate care, as negligent medical injuries are still surprisingly common.
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Potential changes to the law
Medical malpractice law in the United States is derived from English common law and has traditionally been under the authority of individual states, not the federal government. While the principles are similar, state law varies across different jurisdictions in the US.
There is a growing body of literature that suggests that physicians believe that pressure to avoid malpractice litigation leads to "defensive medicine". This is medical practice performed primarily to limit the future risk of a lawsuit against the physician, rather than adhering to the medical standard of care. Defensive medicine can lead to a broad set of consequences, including providing unnecessary or harmful care, or declining to supply beneficial care. It also inflicts moral harm on the physician and damages the patient-physician relationship.
To address these issues, some states have changed their laws to adopt "tort reforms", which aim to reduce malpractice liability and healthcare spending. Evidence suggests that wisely chosen reforms can significantly reduce healthcare spending without adversely impacting patient health outcomes.
Another innovative approach to medical malpractice reform is CRPs (Communication and Resolution Programs), which require a culture shift in the medical community and a management of expectations on the part of injured patients. CRPs also require a favourable legal environment, with "apology laws" that explicitly protect clinicians and health institutions from penalty when discussing adverse events openly and honestly with patients and their families.
In New York, recent changes to medical malpractice laws include Lavern's Law, which extends the timeframe for filing lawsuits in cases of delayed diagnosis or misdiagnosis of cancer. New York also allows full compensation for medical malpractice victims, including medical expenses, lost wages, pain and suffering, and emotional distress. However, lawmakers are considering placing limits on non-economic damages, which may reduce the total compensation victims receive.
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The future of medical malpractice law
Medical malpractice lawsuits are a common occurrence in the United States, with the frequency of claims increasing since the 1960s. The future of medical malpractice law in the US will likely focus on reducing defensive medicine and promoting a culture of open communication between clinicians and patients.
The Impact of Medical Malpractice Lawsuits
Medical malpractice litigation can have a significant impact on physicians, even if a jury verdict is in their favour. The stress, discouragement, and time commitment associated with such lawsuits can take a heavy toll on doctors. Additionally, the current system may incentivise ""defensive medicine", where medical practice is performed primarily to limit the future risk of a successful lawsuit against the physician, rather than adhering to the medical standard of care. This can lead to unproductive, costly, or even harmful care for patients.
The Need for Reform
There is a growing recognition that the current system of medical malpractice law in the US needs reform. Traditional reform efforts have focused on reducing the number and success of malpractice lawsuits, but they often fall short of addressing the needs of patients injured by physician negligence. Patients often desire an account of why the harm occurred, an apology, information on preventing similar incidents, and appropriate restitution.
Alternative Approaches
One innovative approach is the use of Communication and Resolution Programs (CRPs), which require a culture shift in the medical community and a management of patient expectations. CRPs work best when "apology laws" protect clinicians and institutions from penalty when discussing adverse events openly and honestly with patients. However, the majority of states do not have adequate apology and disclosure laws that foster this level of transparency.
Another concept is "enterprise liability", which shifts some of the malpractice liability from individual doctors to healthcare organisations. This can take the form of voluntary agreements by hospitals to provide malpractice insurance to affiliated physicians or proposed changes to state or federal law that would make hospitals or health plans primarily liable for malpractice claims.
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Frequently asked questions
Medical malpractice is defined as any act or omission by a physician during treatment that deviates from accepted norms of medical practice and causes injury to the patient.
Medical malpractice claims first appeared in the US in the 1800s, but a surge of claims appeared in the 1960s. This surge was likely due to new complex treatments, a changing legal landscape, and changes in satisfaction with the healthcare system. Medical malpractice law in the US is derived from English common law and state court rulings.
Medical malpractice law in the US has evolved through numerous court decisions and legislative statutes that vary from state to state. The American Medical Association has proposed establishing a state medical board to discipline physicians and resolve malpractice claims, but this has not been adopted in any state. Some states have also implemented "apology laws" to protect clinicians from penalty when openly discussing adverse events with patients.
There is a complex interplay between state laws and the implementation of CRPs (communication and resolution programs). Some states have less malpractice litigation, while others have more costly litigation. The American Medical Association has proposed eliminating physician liability and replacing it with enterprise liability to reduce costs and expedite the resolution of malpractice claims.
