An Explanation of Malpractice in Medicine

Medical malpractice is defined as "any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient" (Bal, 2009, p.340). Notability, while Bal (2009) defines this in the context of physicians, it is also important to realise that other medical practitioners, such as nurses, dentists, pharmacists, and occupational therapists, can also be subject to malpractice suits. The risks associated with an accusation of malpractice remain high, for example, in a recent report it was found that doctors in low risk specialty areas had a 75% chance of facing a malpractice claim, whereas those is high risk specialities had a 100% chance (Seabury, Lakdawalla, and Chandra, 2011). However, the incidence level of paid claims is reducing; in 2014 there were a total of 11,922 claims, a 4.3% decrease on the preceding year (Gamble, 2013). Defending a claim can be costly, which may explain why, in 2012, approximately 93% of all claims were settled out of court (Gamble, 2013). The most common claims related to delayed diagnosis, accounting for 33% of claims, followed by surgery related claims accounting for 24% of cases (Gamble, 2013).

In the United States, medical malpractice law is usually under the jurisdiction of state rather than federal law (Budetti & Waters, 2005). The basis of the legal framework for these cases is mainly rooted in common law, with decisions from previous cases acting as precedent (Budetti & Waters, 2005). However, as case law in one state does not apply in other states, this has resulted in many divergences between the states, although commonly principles apply (Bal. 2009; Budetti & Waters, 2005). Cases brought come under the category of tort law, which means wrong (Bal, 2009) and is the area of law dealing with cases where there is injury to people or property (Edwards and Wells, 2015). The tort of medical malpractices refers to a situation where there has been negligence on the part of the practitioner resulting in harm. For a negligence claim to have merit the basic concept is that an individual acting in a manner that was not sufficiently careful, and if they do not shown a suitable level of care, they should be held responsible for the harm they cause. This leads to the difficult issue of how it is determined who had a duty to whom, and what a suitable level of care should be before there is the determination of negligence.

In the case of malpractice, the injured party, referred to as the plaintiff, needs to prove their case, this is undertaken by establishing four elements;

1. The defendant (practitioner) had a legal duty to provide treatment of care to the patient. This is usually present in the usual doctor and patient relationship, and is usually uncontentious (Bal. 2009; Budetti & Waters, 2005).

2. The defendant breached that duty of care in the way care was provided, or omitted, care, with reference to generally accepted medical standards (Bal. 2009; Budetti & Waters, 2005). This can be the difficulty for malpractice claims, as standards may be subjective, with witnesses called to testify having different opinions (Bal. 2009; Budetti & Waters, 2005). There may also be different standards applied in different states (Bal, 2009). It is for this reason there are often many disclaimers requiring signatures before new or innovative treatments are pursued.

3. There is a causal relationship between the malpractice injury or harm, and the harm suffered by the patient (Bal, 2009).

4. The damages that have been sustained are suitable for the provision of redress by the legal system (Bal, 2009). This includes the calculation of a monetary compensation.