Medical Negligence

It’s scary to think about what the most minor medical mistake can cause.  The media is filled with bizarre stories of sponges forgotten in the body during surgery, operations on the wrong limb or the wrong person, and babies switched at birth. 

Still, errors are made.  When those errors fail to meet acceptable standards of care for the local medical community, then the law will find them to be medical malpractice and damages will be awarded to the injured party.
Physicians’ mistakes are the usual topic of medical malpractice news items. However, physicians, nurses, dentists, emergency room technicians, physical therapists, nurses’ aides, as well as any other individual providing medical care, are all health care providers who may legally be liable for medical malpractice.  Medical malpractice claims also extend to corporate entities, such as hospitals, ambulance service companies, laboratories, clinics, and other establishments operating to provide health care.

To establish a medical malpractice claim, an injured patient must show: (1) the health care provider owed a legal duty to the patient; (2) this duty was breached when the health care provider failed to meet the standard of care set by the local medical community; (3) this breach of duty was a proximate cause of the patient’s injuries; and (4) the patient suffered actual harm.

Studies show showed that more than 33% of medical malpractice claims are based upon an error in diagnosis.  Almost 70% of medical errors occur on an outpatient basis.   There are also studies showing that many medical malpractice claims are frivolous; in 2006,  the Harvard School for Public Health published its findings in the New England Journal of Medicine, where as many as 40% of these claims were found to be without merit. 

Medical malpractice claims are complicated due to the actual complexity of the required evidence.  Usually, lawyers and law firms specialize in medical malpractice cases, accumulating significant medical expertise and experience over time.  These trial lawyers argue against findings such as the 2006 Harvard Study, claiming that it is simply not practical to pursue such a complicated and expensive type of claim without assurance at the outset of its viability.  Meritless claims, these lawyers hold, simply aren’t worth their investment of time and money and therefore, are not filed. 

From this juxtaposition of attitudes on medical malpractice lawsuits comes the tort reform debate.  In the past few years, proponents of tort reform have successfully impacted the area of medical malpractice.  A majority of states have enacted legislation to limit, or cap, medical malpractice damage awards in lawsuits.  Many have also limited the attorneys’ fees that plaintiffs’ attorneys can obtain from in medical malpractice cases.  Statutes of limitations, e.g., filing deadlines, have been shortened.  Many states have distinguished one health care provider from another on scope of potential liability, and some have eliminated joint and several, e.g., shared, liability in medical malpractice lawsuits.


In his 2006 State of the Union address, President Bush once again requested congressional action on medical malpractice tort reform.  Nevertheless, there has been no federal legislation passed to date.  Federal tort reform remains a hot topic in both the House and Senate, with several bills being routinely presented, unsuccessfully, to Congress in recent years.  If federal tort reform legislation does pass, it will preempt the assorted state legislation and unify tort reform standards for medical malpractice across the country. 

For more information:

National Conference of State Legislatures: Medical Malpractice Tort Reform

Medical News Today - Medical Malpractice Litigation Updates

ABA Division for Public Education: Do I Have a Med Mal Case?

AMA Position on Medical Liability

The White House Position on Medical Liability