legal cause of action when health professionals deviate from standards of practice harming a patient
- For years, proponents of wiping out the right to jury trials in U.S. medical malpractice cases have pointed to two countries with “no-fault” systems – Sweden and New Zealand – maintaining that if such systems work in those countries, they can also work here. This contention has become part of the case for so-called “health courts,” a U.S. proposal that would force all medical malpractice cases into a system based on workers’ compensation “no-fault” models.
- Jocelyn Bogdan, "Medical Malpractice in Sweded and New Zealand", Center for Justice & Democracy, (13 December 2017), p.1.
- The Swedish system begins, like U.S. “health court” proposals, with an insurance component. This is where the great majority of Swedish claims are settled. The insurance adjuster confers with doctors and medical advisors who are specialists in their fields and decides within a year whether to pay the victim this extra amount above what the government is already paying. Compensation is based on each victim’s specific injury. Non-economic (i.e., pain and suffering) damages, based on age and injury, are capped.
- Ibid, p.3.
- In response to increasing costs of medical malpractice insurance and insurers withdrawing from the market in the late 1980s, Virginia and Florida both created funds to compensate families for the lifetime medical expenses they incur when their child is born severely impaired because of neurological injuries suffered during the birthing process. Infants were singled out because lawsuits associated with these cases have a relatively high success rate and successful cases tend to result in large monetary awards. The fund and claims process is an alternative to malpractice litigation. If a family that volunteered for the program is eligible for coverage, it cannot pursue a malpractice claim; if it is found ineligible for coverage, it can then litigate.
- George Collpolo, "Medical Malpractice No Fault Systems". Office of Legal Research. Connecticut General Assembly. (8 December 2003).
- In 1978 the Pearson Commission in the United Kingdom rejected a no-fault system in dealing with clinical negligence. While declaring the existing tort system as costly, cumbersome, prone to delay, and too capricious in its operation to be defensible, the commission rejected no-fault compensation on grounds of the difficulty in overhauling the tort liability system and the perceived difficulties in causation judgments. A general conservatism in the legal profession and opposition from the insurance industry were other factors. Much has changed in the NHS since then.
- William J Gaine, "No-fault compensation systems", British Medical Journal, (10 May 2003), 326 (7397): pp. 997–998.
- In Canada, as in the United States, there is a perception that the country is in the throes of a malpractice "crisis" involving both liability and insurance issues-health care providers perceive an increased exposure to or risk of legal availability for ever larger amounts of money. However, claims data from the two countries vary widely, in part because of procedural and doctrinal difference between the two legal systems.
- Joan M Gilmour, "Overview of Medical Malpractice Law in Canada". Annals of Health Law, (1994), 3 (1): p. 179.
- In order to prevail in a medical malpractice action, the patient must prove that an injury resulted from the substandard medical care. If the patient has other medical conditions, the patient may have to prove that a claimed injury was caused by the alleged medical negligence and not by a different medical condition.
Not all incidents of medical malpractice will support a medical malpractice claim, as even a clear medical error may not result in damages to the patient. Damages are a necessary element of a medical malpractice claim. If the patient's treatment or prognosis is not affected by the negligent act or omission, the patient may not be entitled to compensation.
- A claim based upon lack of informed consent alleges that had the risks been properly disclosed to the patient, the patient would have declined treatment or sought a different course of treatment. If a healthcare professional fails to obtain informed consent, even if the care provided satisfied the governing standard of care, it may be possible for the patient to bring a medical malpractice case if the patient experiences an unexpected side-effect or complication.
- Aaron Larson, "Medical Malpractice Law", ExpertLaw.com, (8 November 2014).
- “Health courts” would “entail some huge potential increases in total system costs. …If we take health care proponents at their word, their goal is to bring…currently non-claiming people into the process.” This, however “would multiply the number of claims involving negligence by a factor between 33 and 50.”
- Maxwell J. Mehlman and Dale A. Nance, Medical Injustice: The Case Against Health Courts; as quoted in ibid, p.4
- Overall, the German system for compensating for medical injury illustrates the imagination and freedom of the courts in developing the rules patient. As noted, the effect is over-compensation (on a corrective justice approach), but this has been seen as an aspect of permissible loss redistribution. At least in the past, in the context of the affluent conditions of German society, with costs shared between the social security system and liability insurers, this was a stable solution with broad support, which kept reform initiatives in this area largely off the political agenda. This position is now under threat in light of the ever higher sums of damages awarded in a minority of cases, as well as the increasing tendency for patients' social and private insurers to invoke their rights of subrogation. As noted above, this is beginning to produce a crisis in the medical liability insurance sector. Although some commentators have expressed the hope that patient safety initiatives, once they bear fruit, may lead to a fall in such cases, this seems unlikely: as noted, one of the findings underlying the patient safety movement is how rarely cases of medical injury lead to a compensation claim. It will at any rate be interesting to see how matters develop in the future.
- Ibid, pp. 1167-1168.
- Under state law, a patient may pursue a civil claim against physicians or other health care providers, called medical liability or medical malpractice, if the health care provider causes injury or death to the patient through a negligent act or omission. To recover damages, the patient must establish:
1. The physician owed a duty to the patient.
2. The standard of care and that the physician violated that standard.
3. A compensable injury.
4. The violation of the standard of care caused the harm suffered by the patient.
- National Conference of State Legislatures. "Medical Liability", (13 January 2014).
- Medical malpractice and compensation for medical injuries are highly visible, controversial, and publicly debated topics that regularly create tension and innovation in legal systems around the world, but the analysis and debate in each country is often limited to national audiences with an assumption that the issues are unique to that location. These chapters address this subject matter in a uniquely global context that demonstrates the universal nature of the issues and the diversity of approaches currently taken around the world and reveal key areas of tension and the likely direction of future developments. Wherever possible, the analysis is supported by reference to the available empirical data, though in many countries this is unfortunately very limited.
- Ken Oliphant; Richard W. Wright, Walter de Gruyter, “Medical Malpractice and Compensation in Global Perspective”, (2013), p.1.
- Mr Darnley’s lawyer, Deborah Blythe of law firm Russell Cooke, told the HSJ: “The defendants were arguing that the giving of information about the availability of medical assistance is purely a matter of courtesy. Even if they get it horribly wrong the trust shouldn’t be responsible for any consequences. That has now changed.”
Today’s ruling overturned judgements made in the High Court and Court of Appeal. After its success in the Court of Appeal last year, NHS Resolution said this claim was “a novel one which we considered important to resist in the interests of the NHS” because “opening up receptionists to negligence claims of this kind would have had very serious consequences for the NHS.”
- Jack Serle, "'Serious consequences' for NHS after negligence ruling over receptionist's advice". Health Service Journal. (11 October 2018).
- As is the problem in other countries, there has been an increasing recognition in Germany of the prevalence of avoidable patient injury in the course of medical treatment. In 2007 an expert committee charged with monitoring developments presented statistics (compiled on the basis of 184 studies) suggesting an annual rate of preventable adverse events (vermeidbare unerwiinschte Ereignisse) of 2-4% in hospital care, and a PAE-related mortality rate of 0.1%.6 Given that some 17 million in-patient treatments take place each year, this corresponds to half-a-million injuries and 17,000 preventable deaths.
- Marc S. Stauch, "Medical Malpractice and Compensation in Germany". (June 2011). 86 (3). pp. 1140-1141.
- Overall, 32 reports examining the association between doctors’ sex and medico-legal action were included in the systematic review (n=4,054,551), of which 27 found that male doctors were more likely to have experienced medico-legal action. 19 reports were included in the meta-analysis (n=3,794,486, including 20,666 cases). Results showed male doctors had nearly two and a half times the odds of being subject to medico-legal action than female doctors. Heterogeneity was present in all meta-analyses.
Male doctors are more likely to have had experienced medico-legal actions compared to female doctors. This finding is robust internationally, across outcomes of varying severity, and over time.
- Emily Unwin; Woolf, Katherine; Wadlow, Clare; Potts, Henry W. W.; Dacre, Jane "Sex differences in medico-legal action against doctors: a systematic review and meta-analysis". BMC Medicine. 13: 172. doi:10.1186/s12916-015-0413-5. (1 January 2015).