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 sust.

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.