SlideShare a Scribd company logo
Running Head: MEDICAL MALPRACTICE LAWSUIT 1
MEDICAL MALPRACTICE LAWSUIT 5
Term Paper “The Lawsuit of Medical Malpractice”
Marilyn Diaz
Professor George Ackerman
PLA4522 Health Care Law
July 17th, 2019
Abstract
This paper explores “Medical Malpractice” in the field of law in
detailed explanation. The paper begins with an introduction to
medical malpractice giving statistics and data. Data from the
European Union is used to give a detailed illustration. The
introduction is followed by elements of medical malpractice
lawsuit, defenses to a medical malpractice lawsuit, ways of
avoiding a medical malpractice lawsuit and the policy of
medical insurance. The method used to gather information was
reading of various articles on the subject. The results of the
study revealed an increase in the number of medical malpractice
cases. Results also revealed that some medical practitioners are
using the defenses available in medical malpractice lawsuit to
evade penalties. The study emphasizes on ways in which
physicians can avoid malpractice by way of precautionary
measures.
The Lawsuit of Medical Malpractice
Introduction
Medical malpractice is a precise kind of negligence defined as
an act of omission by a physician during treatment of a patient
that departs from accepted standards of practice in the health
sector and causes an injury to the patient (Bal, 2009). In the last
decade, medical malpractice has increased in Europe to double-
digit percentage i.e. >50% in Eastern States, Great Britain and
the Baltic, a maximum three-digit percentage i.e. 200-500% in
Mediterranean area, Germany, the Iberian countries and Italy.
France and Scandinavian counties have seen reduction in
malpractice because of simplification of procedures and
exemplary innovations.
The Special Eurobarometer on Medical Error in 2006 revealed
that 80% of EU citizens view medical error as a key issue and
close to 50% believed they would be tangled in a case of
medical malpractice. This revealed that the public has become
aware that claims of medical malpractice against health
practitioners can be successful. In Sweden and Denmark
between 2005-2010, the ratio of approval for compensatory
claims rose to 40%, the average settlement of around €30,000
per case in EU countries. The European Hospital and Healthcare
Federation Standing Committee estimates cost of coverage to be
in excess of 200%. Costs fluctuated between 9 and 15 euros per
capita with Britain exhibiting the highest figures (Ferrara,
2013).
Elements of a Medical Malpractice Lawsuit
The burden of proof in a Medical Malpractice Lawsuit lays on
the plaintiff. The plaintiff needs to prove all the elements of
medical malpractice in order to stand chance of success in a
courtroom.
Existence of physician-patient relationship. Breach of duty of
cared owed to patient by physician. Duty upheld at a
professional standard of care. Duty of the physician to the
patient established by the relationship. Patient sustained a
resulting injury. Injury was caused by the physician’s breach
(Bal, 2009).
The Defenses to a Medical Malpractice Cause of Action
In a medical malpractice lawsuit, the plaintiff must prove the
four elements of negligence namely causation, duty, damages
and breach. However, a lawsuit can still be defeated even if all
four elements are satisfied when any of the following defenses
is brought forth: Statute of limitations, Contributory negligence,
Comparative negligence, Emergency and Assumption of risks.
Statute of Limitations. Evidence should be brought forward in a
timely manner when it is reliable, fresh and accurate. The
practitioner in question gets repose i.e. relief from worry of
lawsuit being brought during an indefinite period. The statute of
limitation is the time period within which a lawsuit can be
brought before a court. The states of California, Ohio and
Tennessee however have a 1year limit on medical claims.
Attempts by the defense to raise it to bar recovery meet hostile
from the court as it deprives the plaintiff of a legitimate claim
(Elam v Menzies , 2010).
Contributory and Comparative Negligence. Contributory
negligence states that the defendant can prevent the suit from
succeeding if proven victim was at fault too. Law changed to
comparative negligence in which the amount of damages is
proportionately reduced by the percentage of plaintiff’s
contributory fault. Currently it’s functional in all jurisdictions
except five. An example is: if plaintiff is 20% negligent, he/she
will only be able to recover 80% damages. Some states however
don’t allow plaintiff to recover if he/she is more than 50%
negligent. The doctrine of “Avoidance of Consequences” allows
the plaintiff an opportunity to mitigate which is to avoid or
reduce adverse consequences. Contributory negligence works
together with the tortfeasor’s act.
Assumption of risk. This defense states that should the plaintiff
be aware of the risk he/she is being exposed to and voluntarily
accept the risk then there won’t be a recovery should harm
occur. The two elements constituent are: approval to relinquish
all claims for damages and full knowledge of the risks. A
patient voluntarily and effortlessly sought natural herb
treatment in California for breast cancer after rejecting
conventional therapy. Doctors gave her full disclosure on the
experimental treatment leading to court dismissing her claim on
this ground. Patient assumed risk of harm by issuing informed
consent to experimental treatment (Schneider v Revici, 1987).
Emergency. The cardinal principle here is whether delay in
order to obtain consent before commencing with treatment
would lead to harm to patient (Tan, 2010)
.
Ways of Avoiding a Medical Malpractice Lawsuit
As proven in cases of medical malpractice, doctors should be
keen with the following categories of things:
protocols/guidelines, documentation, referrals, patient
care/diagnosis and physician skills.
Patient care and diagnosis. Doctors should show care to
patients, try different methods in treating patients, personally
see and interpret the results of patients and never to forget
checking vital signs during procedures.
Referrals. “The best doctors are the ones who call for help when
they need it” is a famous saying in medical malpractice defense
system. Keep ego aside and consult. Monitor the Midlevel
Providers for liability befalls the physician in case of
negligence on part of Midlevel Providers.
Communication. Communicate not only to patients but their
families explaining the process. Directly talk to consultants
calling them directly not forgetting to relay your concerns.
Whenever a physician is on weekends, holidays or it’s at night,
communication is important. Any accidents that occur bar
communication from the physician have a cause for action.
Documentation. Know how to use the Electronic. Charts should
be done on time. Any medication alert in the EMR should be
given attention.
Physician skills/Continuing Medical Education. Medical records
should not be shared with family members or friends. Work
stuff like patient’s record should be kept out of social media
like Facebook.
Protocols/Guidelines
They have approval of different doctors from diverse fields.
Physicians should explain any deviation from set protocols and
guidelines (Bono, 2019).
Medical Malpractice Insurance
It’s errors and omissions coverage protecting medical
practitioners from negligent claims by patients. It is also called
medical professional liability insurance. There are essential
policies when shopping for a medical malpractice insurance.
Claims. Provide protection if a physician fails to follow
accepted standards of care.
Medico-legal complaints. This is when a physician’s
communication skills, conduct or decision-making is
questioned.
Good Samaritan Act. Provides physicians protection when they
offer care in an emergency situation to allow them focus solely
on patient’s needs.
Vicarious Liability. Protects physicians for patients’ injury even
when not in their control.
Unintentional intellectual property infringement. The physician
and owner are protected for intellectual rights infringement.
Legal representation costs. Defense cost associated with a
malpractice case can be substantial.
Optional extension. They offer tailor-made insurance policy suit
a physician’s needs.
Automatic run-off cover. Protection against any future
liabilities when you cease to practice via retirement or
otherwise (Hambali, 2014).
References
Bal, B. (2009). An Introduction to Medical Malpractice in the
United States. Clinical orthopaedics and related research (Vol.
467(2)).
Bono, M. J. (2019). Medical Malpractice. NCBI.
Elam v Menzies , 594 F. 3d 463 (6th Circuit 2010).
Ferrara, D. (2013). Medical malpractice and legal medicine. In
Intenational Journal of Legal Mdicine (Vol. 127, pp. 541-543).
Hambali, S. K. (2014). A review of medical malpractice issues
in Malaysia under Tort litigation sytem . Global Journal of
Health Sciences, 76-83.
Schneider v Revici, 817 F.2d 987 (2rd Circuit 1987).
Tan, S. Y. (2010). Medical Malpractice: A Cardiovascular
Perspective. Cardiovascular Therapeutics, e140-e145.

More Related Content

Similar to Running Head MEDICAL MALPRACTICE LAWSUIT1 MEDICAL MALPRACTICE .docx

Identify the top two litigious areas for your selected health care o.pdf
Identify the top two litigious areas for your selected health care o.pdfIdentify the top two litigious areas for your selected health care o.pdf
Identify the top two litigious areas for your selected health care o.pdf
archgeetsenterprises
 
Medical Negligence Private Practice
Medical Negligence Private PracticeMedical Negligence Private Practice
Medical Negligence Private Practice
Dr.Ashok Khandelwal
 
Respondeat superior tort liability and surgical errors in low income countrie...
Respondeat superior tort liability and surgical errors in low income countrie...Respondeat superior tort liability and surgical errors in low income countrie...
Respondeat superior tort liability and surgical errors in low income countrie...
Alexander Decker
 
Medical Malpractice
Medical MalpracticeMedical Malpractice
Medical Malpractice
butrflykris
 
ILLUSTRATION BY ELIZ.docx
ILLUSTRATION BY ELIZ.docxILLUSTRATION BY ELIZ.docx
ILLUSTRATION BY ELIZ.docx
sheronlewthwaite
 
Medical Billing Fraud
Medical Billing FraudMedical Billing Fraud
Medical Billing Fraud
magicalmilon
 
Here's What to Do When Facing a Medical Malpractice Suit
Here's What to Do When Facing a Medical Malpractice SuitHere's What to Do When Facing a Medical Malpractice Suit
Here's What to Do When Facing a Medical Malpractice Suit
Cullen McKinney
 
Impact of Medical Mal-Practice in India
Impact of Medical Mal-Practice in IndiaImpact of Medical Mal-Practice in India
Impact of Medical Mal-Practice in India
IJMER
 
East zone medico legal services pvt
East zone medico legal services pvtEast zone medico legal services pvt
East zone medico legal services pvt
east zone medico legal services pvt.ltd
 
Compilation of answers participaters debat each 180409
Compilation of answers participaters debat each 180409Compilation of answers participaters debat each 180409
Compilation of answers participaters debat each 180409siegfried van hoek
 
3.1 Consumer protection act in Medical Profession.pptx
3.1 Consumer protection act in Medical Profession.pptx3.1 Consumer protection act in Medical Profession.pptx
3.1 Consumer protection act in Medical Profession.pptx
binupal1
 
Healthcare Issue Assignment Sample
Healthcare Issue Assignment SampleHealthcare Issue Assignment Sample
Healthcare Issue Assignment Sample
Assignment Prime
 
Dave Rennalls Course Project Final
Dave Rennalls Course Project FinalDave Rennalls Course Project Final
Dave Rennalls Course Project FinalDave Rennalls
 
Medico legal issues regarding surgical practice
Medico legal issues regarding surgical practiceMedico legal issues regarding surgical practice
Medico legal issues regarding surgical practice
PritamKar17
 

Similar to Running Head MEDICAL MALPRACTICE LAWSUIT1 MEDICAL MALPRACTICE .docx (16)

Identify the top two litigious areas for your selected health care o.pdf
Identify the top two litigious areas for your selected health care o.pdfIdentify the top two litigious areas for your selected health care o.pdf
Identify the top two litigious areas for your selected health care o.pdf
 
Medical Negligence Private Practice
Medical Negligence Private PracticeMedical Negligence Private Practice
Medical Negligence Private Practice
 
Respondeat superior tort liability and surgical errors in low income countrie...
Respondeat superior tort liability and surgical errors in low income countrie...Respondeat superior tort liability and surgical errors in low income countrie...
Respondeat superior tort liability and surgical errors in low income countrie...
 
Medical Malpractice
Medical MalpracticeMedical Malpractice
Medical Malpractice
 
ILLUSTRATION BY ELIZ.docx
ILLUSTRATION BY ELIZ.docxILLUSTRATION BY ELIZ.docx
ILLUSTRATION BY ELIZ.docx
 
Medical Billing Fraud
Medical Billing FraudMedical Billing Fraud
Medical Billing Fraud
 
Here's What to Do When Facing a Medical Malpractice Suit
Here's What to Do When Facing a Medical Malpractice SuitHere's What to Do When Facing a Medical Malpractice Suit
Here's What to Do When Facing a Medical Malpractice Suit
 
Impact of Medical Mal-Practice in India
Impact of Medical Mal-Practice in IndiaImpact of Medical Mal-Practice in India
Impact of Medical Mal-Practice in India
 
East zone medico legal services pvt
East zone medico legal services pvtEast zone medico legal services pvt
East zone medico legal services pvt
 
Litigation
LitigationLitigation
Litigation
 
Compilation of answers participaters debat each 180409
Compilation of answers participaters debat each 180409Compilation of answers participaters debat each 180409
Compilation of answers participaters debat each 180409
 
3.1 Consumer protection act in Medical Profession.pptx
3.1 Consumer protection act in Medical Profession.pptx3.1 Consumer protection act in Medical Profession.pptx
3.1 Consumer protection act in Medical Profession.pptx
 
Documentation You Can Defend On - CHCO
Documentation You Can Defend On - CHCODocumentation You Can Defend On - CHCO
Documentation You Can Defend On - CHCO
 
Healthcare Issue Assignment Sample
Healthcare Issue Assignment SampleHealthcare Issue Assignment Sample
Healthcare Issue Assignment Sample
 
Dave Rennalls Course Project Final
Dave Rennalls Course Project FinalDave Rennalls Course Project Final
Dave Rennalls Course Project Final
 
Medico legal issues regarding surgical practice
Medico legal issues regarding surgical practiceMedico legal issues regarding surgical practice
Medico legal issues regarding surgical practice
 

More from glendar3

Running head Multi-actor modelling system 1Multi-actor mod.docx
Running head Multi-actor modelling system  1Multi-actor mod.docxRunning head Multi-actor modelling system  1Multi-actor mod.docx
Running head Multi-actor modelling system 1Multi-actor mod.docx
glendar3
 
Running head MY MOTHER MY HERO .docx
Running head MY MOTHER MY HERO                                   .docxRunning head MY MOTHER MY HERO                                   .docx
Running head MY MOTHER MY HERO .docx
glendar3
 
Running head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION PLAN.docx
Running head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION PLAN.docxRunning head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION PLAN.docx
Running head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION PLAN.docx
glendar3
 
Running head Project 21Project 22Projec.docx
Running head Project 21Project 22Projec.docxRunning head Project 21Project 22Projec.docx
Running head Project 21Project 22Projec.docx
glendar3
 
Running head MILESTONE ONE .docx
Running head MILESTONE ONE                                       .docxRunning head MILESTONE ONE                                       .docx
Running head MILESTONE ONE .docx
glendar3
 
Running Head PROJECT 31DISCUSSION5Project 3.docx
Running Head PROJECT 31DISCUSSION5Project 3.docxRunning Head PROJECT 31DISCUSSION5Project 3.docx
Running Head PROJECT 31DISCUSSION5Project 3.docx
glendar3
 
Running head PROBLEM STATEMENT .docx
Running head PROBLEM STATEMENT                                 .docxRunning head PROBLEM STATEMENT                                 .docx
Running head PROBLEM STATEMENT .docx
glendar3
 
Running head MUSIC AND GENDER WOMEN PORTRAYAL IN RAP 1.docx
Running head MUSIC AND GENDER WOMEN PORTRAYAL IN RAP        1.docxRunning head MUSIC AND GENDER WOMEN PORTRAYAL IN RAP        1.docx
Running head MUSIC AND GENDER WOMEN PORTRAYAL IN RAP 1.docx
glendar3
 
Running head PROGRAM AND MISSION ALIGNMENT .docx
Running head PROGRAM AND MISSION ALIGNMENT                       .docxRunning head PROGRAM AND MISSION ALIGNMENT                       .docx
Running head PROGRAM AND MISSION ALIGNMENT .docx
glendar3
 
Running head Museum Focus1Museum Focus.docx
Running head Museum Focus1Museum Focus.docxRunning head Museum Focus1Museum Focus.docx
Running head Museum Focus1Museum Focus.docx
glendar3
 
Running head MODULE 3 - SLP .docx
Running head MODULE 3 - SLP                                    .docxRunning head MODULE 3 - SLP                                    .docx
Running head MODULE 3 - SLP .docx
glendar3
 
Running Head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION.docx
Running Head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION.docxRunning Head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION.docx
Running Head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION.docx
glendar3
 
Running head PROGRAM EVALUATION .docx
Running head PROGRAM EVALUATION                                  .docxRunning head PROGRAM EVALUATION                                  .docx
Running head PROGRAM EVALUATION .docx
glendar3
 
Running Head MUNCHAUSEN SYNDROMEMunchausen SyndromeKr.docx
Running Head MUNCHAUSEN SYNDROMEMunchausen SyndromeKr.docxRunning Head MUNCHAUSEN SYNDROMEMunchausen SyndromeKr.docx
Running Head MUNCHAUSEN SYNDROMEMunchausen SyndromeKr.docx
glendar3
 
Running head PROGRAM EVALUATION 6PROGRAM EVALUATIONPr.docx
Running head PROGRAM EVALUATION 6PROGRAM EVALUATIONPr.docxRunning head PROGRAM EVALUATION 6PROGRAM EVALUATIONPr.docx
Running head PROGRAM EVALUATION 6PROGRAM EVALUATIONPr.docx
glendar3
 
Running head PROFESSIONAL PLAN 1 © 2018 Laureate Educ.docx
Running head PROFESSIONAL PLAN  1  © 2018 Laureate Educ.docxRunning head PROFESSIONAL PLAN  1  © 2018 Laureate Educ.docx
Running head PROFESSIONAL PLAN 1 © 2018 Laureate Educ.docx
glendar3
 
Running head PROGRAM DESIGN 1PROGRAM DESIGN 2.docx
Running head PROGRAM DESIGN 1PROGRAM DESIGN 2.docxRunning head PROGRAM DESIGN 1PROGRAM DESIGN 2.docx
Running head PROGRAM DESIGN 1PROGRAM DESIGN 2.docx
glendar3
 
Running head PROFICIENCY LEVEL ANALYSIS1PROFICIENCY LEVEL AN.docx
Running head PROFICIENCY LEVEL ANALYSIS1PROFICIENCY LEVEL AN.docxRunning head PROFICIENCY LEVEL ANALYSIS1PROFICIENCY LEVEL AN.docx
Running head PROFICIENCY LEVEL ANALYSIS1PROFICIENCY LEVEL AN.docx
glendar3
 
Running head PROFESSIONAL CAPSTONE AND PRACTICUM1PROFESSIONA.docx
Running head PROFESSIONAL CAPSTONE AND PRACTICUM1PROFESSIONA.docxRunning head PROFESSIONAL CAPSTONE AND PRACTICUM1PROFESSIONA.docx
Running head PROFESSIONAL CAPSTONE AND PRACTICUM1PROFESSIONA.docx
glendar3
 
Running head PROFESSIONAL DEVELOPMENT PROPOSAL PROGRAM .docx
Running head PROFESSIONAL DEVELOPMENT PROPOSAL PROGRAM           .docxRunning head PROFESSIONAL DEVELOPMENT PROPOSAL PROGRAM           .docx
Running head PROFESSIONAL DEVELOPMENT PROPOSAL PROGRAM .docx
glendar3
 

More from glendar3 (20)

Running head Multi-actor modelling system 1Multi-actor mod.docx
Running head Multi-actor modelling system  1Multi-actor mod.docxRunning head Multi-actor modelling system  1Multi-actor mod.docx
Running head Multi-actor modelling system 1Multi-actor mod.docx
 
Running head MY MOTHER MY HERO .docx
Running head MY MOTHER MY HERO                                   .docxRunning head MY MOTHER MY HERO                                   .docx
Running head MY MOTHER MY HERO .docx
 
Running head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION PLAN.docx
Running head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION PLAN.docxRunning head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION PLAN.docx
Running head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION PLAN.docx
 
Running head Project 21Project 22Projec.docx
Running head Project 21Project 22Projec.docxRunning head Project 21Project 22Projec.docx
Running head Project 21Project 22Projec.docx
 
Running head MILESTONE ONE .docx
Running head MILESTONE ONE                                       .docxRunning head MILESTONE ONE                                       .docx
Running head MILESTONE ONE .docx
 
Running Head PROJECT 31DISCUSSION5Project 3.docx
Running Head PROJECT 31DISCUSSION5Project 3.docxRunning Head PROJECT 31DISCUSSION5Project 3.docx
Running Head PROJECT 31DISCUSSION5Project 3.docx
 
Running head PROBLEM STATEMENT .docx
Running head PROBLEM STATEMENT                                 .docxRunning head PROBLEM STATEMENT                                 .docx
Running head PROBLEM STATEMENT .docx
 
Running head MUSIC AND GENDER WOMEN PORTRAYAL IN RAP 1.docx
Running head MUSIC AND GENDER WOMEN PORTRAYAL IN RAP        1.docxRunning head MUSIC AND GENDER WOMEN PORTRAYAL IN RAP        1.docx
Running head MUSIC AND GENDER WOMEN PORTRAYAL IN RAP 1.docx
 
Running head PROGRAM AND MISSION ALIGNMENT .docx
Running head PROGRAM AND MISSION ALIGNMENT                       .docxRunning head PROGRAM AND MISSION ALIGNMENT                       .docx
Running head PROGRAM AND MISSION ALIGNMENT .docx
 
Running head Museum Focus1Museum Focus.docx
Running head Museum Focus1Museum Focus.docxRunning head Museum Focus1Museum Focus.docx
Running head Museum Focus1Museum Focus.docx
 
Running head MODULE 3 - SLP .docx
Running head MODULE 3 - SLP                                    .docxRunning head MODULE 3 - SLP                                    .docx
Running head MODULE 3 - SLP .docx
 
Running Head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION.docx
Running Head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION.docxRunning Head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION.docx
Running Head PROGRAM EVALUATION PLAN1PROGRAM EVALUATION.docx
 
Running head PROGRAM EVALUATION .docx
Running head PROGRAM EVALUATION                                  .docxRunning head PROGRAM EVALUATION                                  .docx
Running head PROGRAM EVALUATION .docx
 
Running Head MUNCHAUSEN SYNDROMEMunchausen SyndromeKr.docx
Running Head MUNCHAUSEN SYNDROMEMunchausen SyndromeKr.docxRunning Head MUNCHAUSEN SYNDROMEMunchausen SyndromeKr.docx
Running Head MUNCHAUSEN SYNDROMEMunchausen SyndromeKr.docx
 
Running head PROGRAM EVALUATION 6PROGRAM EVALUATIONPr.docx
Running head PROGRAM EVALUATION 6PROGRAM EVALUATIONPr.docxRunning head PROGRAM EVALUATION 6PROGRAM EVALUATIONPr.docx
Running head PROGRAM EVALUATION 6PROGRAM EVALUATIONPr.docx
 
Running head PROFESSIONAL PLAN 1 © 2018 Laureate Educ.docx
Running head PROFESSIONAL PLAN  1  © 2018 Laureate Educ.docxRunning head PROFESSIONAL PLAN  1  © 2018 Laureate Educ.docx
Running head PROFESSIONAL PLAN 1 © 2018 Laureate Educ.docx
 
Running head PROGRAM DESIGN 1PROGRAM DESIGN 2.docx
Running head PROGRAM DESIGN 1PROGRAM DESIGN 2.docxRunning head PROGRAM DESIGN 1PROGRAM DESIGN 2.docx
Running head PROGRAM DESIGN 1PROGRAM DESIGN 2.docx
 
Running head PROFICIENCY LEVEL ANALYSIS1PROFICIENCY LEVEL AN.docx
Running head PROFICIENCY LEVEL ANALYSIS1PROFICIENCY LEVEL AN.docxRunning head PROFICIENCY LEVEL ANALYSIS1PROFICIENCY LEVEL AN.docx
Running head PROFICIENCY LEVEL ANALYSIS1PROFICIENCY LEVEL AN.docx
 
Running head PROFESSIONAL CAPSTONE AND PRACTICUM1PROFESSIONA.docx
Running head PROFESSIONAL CAPSTONE AND PRACTICUM1PROFESSIONA.docxRunning head PROFESSIONAL CAPSTONE AND PRACTICUM1PROFESSIONA.docx
Running head PROFESSIONAL CAPSTONE AND PRACTICUM1PROFESSIONA.docx
 
Running head PROFESSIONAL DEVELOPMENT PROPOSAL PROGRAM .docx
Running head PROFESSIONAL DEVELOPMENT PROPOSAL PROGRAM           .docxRunning head PROFESSIONAL DEVELOPMENT PROPOSAL PROGRAM           .docx
Running head PROFESSIONAL DEVELOPMENT PROPOSAL PROGRAM .docx
 

Recently uploaded

The French Revolution Class 9 Study Material pdf free download
The French Revolution Class 9 Study Material pdf free downloadThe French Revolution Class 9 Study Material pdf free download
The French Revolution Class 9 Study Material pdf free download
Vivekanand Anglo Vedic Academy
 
Basic phrases for greeting and assisting costumers
Basic phrases for greeting and assisting costumersBasic phrases for greeting and assisting costumers
Basic phrases for greeting and assisting costumers
PedroFerreira53928
 
Thesis Statement for students diagnonsed withADHD.ppt
Thesis Statement for students diagnonsed withADHD.pptThesis Statement for students diagnonsed withADHD.ppt
Thesis Statement for students diagnonsed withADHD.ppt
EverAndrsGuerraGuerr
 
aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
siemaillard
 
Phrasal Verbs.XXXXXXXXXXXXXXXXXXXXXXXXXX
Phrasal Verbs.XXXXXXXXXXXXXXXXXXXXXXXXXXPhrasal Verbs.XXXXXXXXXXXXXXXXXXXXXXXXXX
Phrasal Verbs.XXXXXXXXXXXXXXXXXXXXXXXXXX
MIRIAMSALINAS13
 
Additional Benefits for Employee Website.pdf
Additional Benefits for Employee Website.pdfAdditional Benefits for Employee Website.pdf
Additional Benefits for Employee Website.pdf
joachimlavalley1
 
Digital Tools and AI for Teaching Learning and Research
Digital Tools and AI for Teaching Learning and ResearchDigital Tools and AI for Teaching Learning and Research
Digital Tools and AI for Teaching Learning and Research
Vikramjit Singh
 
How to Create Map Views in the Odoo 17 ERP
How to Create Map Views in the Odoo 17 ERPHow to Create Map Views in the Odoo 17 ERP
How to Create Map Views in the Odoo 17 ERP
Celine George
 
Polish students' mobility in the Czech Republic
Polish students' mobility in the Czech RepublicPolish students' mobility in the Czech Republic
Polish students' mobility in the Czech Republic
Anna Sz.
 
1.4 modern child centered education - mahatma gandhi-2.pptx
1.4 modern child centered education - mahatma gandhi-2.pptx1.4 modern child centered education - mahatma gandhi-2.pptx
1.4 modern child centered education - mahatma gandhi-2.pptx
JosvitaDsouza2
 
The Challenger.pdf DNHS Official Publication
The Challenger.pdf DNHS Official PublicationThe Challenger.pdf DNHS Official Publication
The Challenger.pdf DNHS Official Publication
Delapenabediema
 
Students, digital devices and success - Andreas Schleicher - 27 May 2024..pptx
Students, digital devices and success - Andreas Schleicher - 27 May 2024..pptxStudents, digital devices and success - Andreas Schleicher - 27 May 2024..pptx
Students, digital devices and success - Andreas Schleicher - 27 May 2024..pptx
EduSkills OECD
 
Palestine last event orientationfvgnh .pptx
Palestine last event orientationfvgnh .pptxPalestine last event orientationfvgnh .pptx
Palestine last event orientationfvgnh .pptx
RaedMohamed3
 
Unit 8 - Information and Communication Technology (Paper I).pdf
Unit 8 - Information and Communication Technology (Paper I).pdfUnit 8 - Information and Communication Technology (Paper I).pdf
Unit 8 - Information and Communication Technology (Paper I).pdf
Thiyagu K
 
How libraries can support authors with open access requirements for UKRI fund...
How libraries can support authors with open access requirements for UKRI fund...How libraries can support authors with open access requirements for UKRI fund...
How libraries can support authors with open access requirements for UKRI fund...
Jisc
 
Sha'Carri Richardson Presentation 202345
Sha'Carri Richardson Presentation 202345Sha'Carri Richardson Presentation 202345
Sha'Carri Richardson Presentation 202345
beazzy04
 
Sectors of the Indian Economy - Class 10 Study Notes pdf
Sectors of the Indian Economy - Class 10 Study Notes pdfSectors of the Indian Economy - Class 10 Study Notes pdf
Sectors of the Indian Economy - Class 10 Study Notes pdf
Vivekanand Anglo Vedic Academy
 
special B.ed 2nd year old paper_20240531.pdf
special B.ed 2nd year old paper_20240531.pdfspecial B.ed 2nd year old paper_20240531.pdf
special B.ed 2nd year old paper_20240531.pdf
Special education needs
 
Home assignment II on Spectroscopy 2024 Answers.pdf
Home assignment II on Spectroscopy 2024 Answers.pdfHome assignment II on Spectroscopy 2024 Answers.pdf
Home assignment II on Spectroscopy 2024 Answers.pdf
Tamralipta Mahavidyalaya
 
The approach at University of Liverpool.pptx
The approach at University of Liverpool.pptxThe approach at University of Liverpool.pptx
The approach at University of Liverpool.pptx
Jisc
 

Recently uploaded (20)

The French Revolution Class 9 Study Material pdf free download
The French Revolution Class 9 Study Material pdf free downloadThe French Revolution Class 9 Study Material pdf free download
The French Revolution Class 9 Study Material pdf free download
 
Basic phrases for greeting and assisting costumers
Basic phrases for greeting and assisting costumersBasic phrases for greeting and assisting costumers
Basic phrases for greeting and assisting costumers
 
Thesis Statement for students diagnonsed withADHD.ppt
Thesis Statement for students diagnonsed withADHD.pptThesis Statement for students diagnonsed withADHD.ppt
Thesis Statement for students diagnonsed withADHD.ppt
 
aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
 
Phrasal Verbs.XXXXXXXXXXXXXXXXXXXXXXXXXX
Phrasal Verbs.XXXXXXXXXXXXXXXXXXXXXXXXXXPhrasal Verbs.XXXXXXXXXXXXXXXXXXXXXXXXXX
Phrasal Verbs.XXXXXXXXXXXXXXXXXXXXXXXXXX
 
Additional Benefits for Employee Website.pdf
Additional Benefits for Employee Website.pdfAdditional Benefits for Employee Website.pdf
Additional Benefits for Employee Website.pdf
 
Digital Tools and AI for Teaching Learning and Research
Digital Tools and AI for Teaching Learning and ResearchDigital Tools and AI for Teaching Learning and Research
Digital Tools and AI for Teaching Learning and Research
 
How to Create Map Views in the Odoo 17 ERP
How to Create Map Views in the Odoo 17 ERPHow to Create Map Views in the Odoo 17 ERP
How to Create Map Views in the Odoo 17 ERP
 
Polish students' mobility in the Czech Republic
Polish students' mobility in the Czech RepublicPolish students' mobility in the Czech Republic
Polish students' mobility in the Czech Republic
 
1.4 modern child centered education - mahatma gandhi-2.pptx
1.4 modern child centered education - mahatma gandhi-2.pptx1.4 modern child centered education - mahatma gandhi-2.pptx
1.4 modern child centered education - mahatma gandhi-2.pptx
 
The Challenger.pdf DNHS Official Publication
The Challenger.pdf DNHS Official PublicationThe Challenger.pdf DNHS Official Publication
The Challenger.pdf DNHS Official Publication
 
Students, digital devices and success - Andreas Schleicher - 27 May 2024..pptx
Students, digital devices and success - Andreas Schleicher - 27 May 2024..pptxStudents, digital devices and success - Andreas Schleicher - 27 May 2024..pptx
Students, digital devices and success - Andreas Schleicher - 27 May 2024..pptx
 
Palestine last event orientationfvgnh .pptx
Palestine last event orientationfvgnh .pptxPalestine last event orientationfvgnh .pptx
Palestine last event orientationfvgnh .pptx
 
Unit 8 - Information and Communication Technology (Paper I).pdf
Unit 8 - Information and Communication Technology (Paper I).pdfUnit 8 - Information and Communication Technology (Paper I).pdf
Unit 8 - Information and Communication Technology (Paper I).pdf
 
How libraries can support authors with open access requirements for UKRI fund...
How libraries can support authors with open access requirements for UKRI fund...How libraries can support authors with open access requirements for UKRI fund...
How libraries can support authors with open access requirements for UKRI fund...
 
Sha'Carri Richardson Presentation 202345
Sha'Carri Richardson Presentation 202345Sha'Carri Richardson Presentation 202345
Sha'Carri Richardson Presentation 202345
 
Sectors of the Indian Economy - Class 10 Study Notes pdf
Sectors of the Indian Economy - Class 10 Study Notes pdfSectors of the Indian Economy - Class 10 Study Notes pdf
Sectors of the Indian Economy - Class 10 Study Notes pdf
 
special B.ed 2nd year old paper_20240531.pdf
special B.ed 2nd year old paper_20240531.pdfspecial B.ed 2nd year old paper_20240531.pdf
special B.ed 2nd year old paper_20240531.pdf
 
Home assignment II on Spectroscopy 2024 Answers.pdf
Home assignment II on Spectroscopy 2024 Answers.pdfHome assignment II on Spectroscopy 2024 Answers.pdf
Home assignment II on Spectroscopy 2024 Answers.pdf
 
The approach at University of Liverpool.pptx
The approach at University of Liverpool.pptxThe approach at University of Liverpool.pptx
The approach at University of Liverpool.pptx
 

Running Head MEDICAL MALPRACTICE LAWSUIT1 MEDICAL MALPRACTICE .docx

  • 1. Running Head: MEDICAL MALPRACTICE LAWSUIT 1 MEDICAL MALPRACTICE LAWSUIT 5 Term Paper “The Lawsuit of Medical Malpractice” Marilyn Diaz Professor George Ackerman PLA4522 Health Care Law July 17th, 2019 Abstract This paper explores “Medical Malpractice” in the field of law in detailed explanation. The paper begins with an introduction to medical malpractice giving statistics and data. Data from the European Union is used to give a detailed illustration. The introduction is followed by elements of medical malpractice lawsuit, defenses to a medical malpractice lawsuit, ways of avoiding a medical malpractice lawsuit and the policy of medical insurance. The method used to gather information was reading of various articles on the subject. The results of the study revealed an increase in the number of medical malpractice cases. Results also revealed that some medical practitioners are using the defenses available in medical malpractice lawsuit to evade penalties. The study emphasizes on ways in which
  • 2. physicians can avoid malpractice by way of precautionary measures. The Lawsuit of Medical Malpractice Introduction Medical malpractice is a precise kind of negligence defined as an act of omission by a physician during treatment of a patient that departs from accepted standards of practice in the health sector and causes an injury to the patient (Bal, 2009). In the last decade, medical malpractice has increased in Europe to double- digit percentage i.e. >50% in Eastern States, Great Britain and the Baltic, a maximum three-digit percentage i.e. 200-500% in Mediterranean area, Germany, the Iberian countries and Italy. France and Scandinavian counties have seen reduction in malpractice because of simplification of procedures and exemplary innovations. The Special Eurobarometer on Medical Error in 2006 revealed that 80% of EU citizens view medical error as a key issue and close to 50% believed they would be tangled in a case of medical malpractice. This revealed that the public has become aware that claims of medical malpractice against health practitioners can be successful. In Sweden and Denmark between 2005-2010, the ratio of approval for compensatory claims rose to 40%, the average settlement of around €30,000 per case in EU countries. The European Hospital and Healthcare Federation Standing Committee estimates cost of coverage to be in excess of 200%. Costs fluctuated between 9 and 15 euros per capita with Britain exhibiting the highest figures (Ferrara,
  • 3. 2013). Elements of a Medical Malpractice Lawsuit The burden of proof in a Medical Malpractice Lawsuit lays on the plaintiff. The plaintiff needs to prove all the elements of medical malpractice in order to stand chance of success in a courtroom. Existence of physician-patient relationship. Breach of duty of cared owed to patient by physician. Duty upheld at a professional standard of care. Duty of the physician to the patient established by the relationship. Patient sustained a resulting injury. Injury was caused by the physician’s breach (Bal, 2009). The Defenses to a Medical Malpractice Cause of Action In a medical malpractice lawsuit, the plaintiff must prove the four elements of negligence namely causation, duty, damages and breach. However, a lawsuit can still be defeated even if all four elements are satisfied when any of the following defenses is brought forth: Statute of limitations, Contributory negligence, Comparative negligence, Emergency and Assumption of risks. Statute of Limitations. Evidence should be brought forward in a timely manner when it is reliable, fresh and accurate. The practitioner in question gets repose i.e. relief from worry of lawsuit being brought during an indefinite period. The statute of limitation is the time period within which a lawsuit can be brought before a court. The states of California, Ohio and Tennessee however have a 1year limit on medical claims. Attempts by the defense to raise it to bar recovery meet hostile from the court as it deprives the plaintiff of a legitimate claim (Elam v Menzies , 2010). Contributory and Comparative Negligence. Contributory negligence states that the defendant can prevent the suit from succeeding if proven victim was at fault too. Law changed to
  • 4. comparative negligence in which the amount of damages is proportionately reduced by the percentage of plaintiff’s contributory fault. Currently it’s functional in all jurisdictions except five. An example is: if plaintiff is 20% negligent, he/she will only be able to recover 80% damages. Some states however don’t allow plaintiff to recover if he/she is more than 50% negligent. The doctrine of “Avoidance of Consequences” allows the plaintiff an opportunity to mitigate which is to avoid or reduce adverse consequences. Contributory negligence works together with the tortfeasor’s act. Assumption of risk. This defense states that should the plaintiff be aware of the risk he/she is being exposed to and voluntarily accept the risk then there won’t be a recovery should harm occur. The two elements constituent are: approval to relinquish all claims for damages and full knowledge of the risks. A patient voluntarily and effortlessly sought natural herb treatment in California for breast cancer after rejecting conventional therapy. Doctors gave her full disclosure on the experimental treatment leading to court dismissing her claim on this ground. Patient assumed risk of harm by issuing informed consent to experimental treatment (Schneider v Revici, 1987). Emergency. The cardinal principle here is whether delay in order to obtain consent before commencing with treatment would lead to harm to patient (Tan, 2010) . Ways of Avoiding a Medical Malpractice Lawsuit As proven in cases of medical malpractice, doctors should be keen with the following categories of things: protocols/guidelines, documentation, referrals, patient care/diagnosis and physician skills. Patient care and diagnosis. Doctors should show care to patients, try different methods in treating patients, personally see and interpret the results of patients and never to forget
  • 5. checking vital signs during procedures. Referrals. “The best doctors are the ones who call for help when they need it” is a famous saying in medical malpractice defense system. Keep ego aside and consult. Monitor the Midlevel Providers for liability befalls the physician in case of negligence on part of Midlevel Providers. Communication. Communicate not only to patients but their families explaining the process. Directly talk to consultants calling them directly not forgetting to relay your concerns. Whenever a physician is on weekends, holidays or it’s at night, communication is important. Any accidents that occur bar communication from the physician have a cause for action. Documentation. Know how to use the Electronic. Charts should be done on time. Any medication alert in the EMR should be given attention. Physician skills/Continuing Medical Education. Medical records should not be shared with family members or friends. Work stuff like patient’s record should be kept out of social media like Facebook. Protocols/Guidelines They have approval of different doctors from diverse fields. Physicians should explain any deviation from set protocols and guidelines (Bono, 2019). Medical Malpractice Insurance It’s errors and omissions coverage protecting medical practitioners from negligent claims by patients. It is also called medical professional liability insurance. There are essential policies when shopping for a medical malpractice insurance. Claims. Provide protection if a physician fails to follow accepted standards of care. Medico-legal complaints. This is when a physician’s communication skills, conduct or decision-making is questioned. Good Samaritan Act. Provides physicians protection when they offer care in an emergency situation to allow them focus solely on patient’s needs.
  • 6. Vicarious Liability. Protects physicians for patients’ injury even when not in their control. Unintentional intellectual property infringement. The physician and owner are protected for intellectual rights infringement. Legal representation costs. Defense cost associated with a malpractice case can be substantial. Optional extension. They offer tailor-made insurance policy suit a physician’s needs. Automatic run-off cover. Protection against any future liabilities when you cease to practice via retirement or otherwise (Hambali, 2014). References Bal, B. (2009). An Introduction to Medical Malpractice in the United States. Clinical orthopaedics and related research (Vol. 467(2)). Bono, M. J. (2019). Medical Malpractice. NCBI. Elam v Menzies , 594 F. 3d 463 (6th Circuit 2010). Ferrara, D. (2013). Medical malpractice and legal medicine. In Intenational Journal of Legal Mdicine (Vol. 127, pp. 541-543). Hambali, S. K. (2014). A review of medical malpractice issues
  • 7. in Malaysia under Tort litigation sytem . Global Journal of Health Sciences, 76-83. Schneider v Revici, 817 F.2d 987 (2rd Circuit 1987). Tan, S. Y. (2010). Medical Malpractice: A Cardiovascular Perspective. Cardiovascular Therapeutics, e140-e145.