Medical malpractice is one area where tort reform is argued most heavily. Some c
ID: 176877 • Letter: M
Question
Medical malpractice is one area where tort reform is argued most heavily. Some concerns are that caps on damages might result in costs that ultimately fall on the taxpayer; other concerns are the increase in medical expenses for tests ordered before diagnosis by physicians hoping to eliminate a future claim of medical malpractice.
First, research medical malpractice for an understanding of the elements of this cause of action. Then, read the following two articles and answer the questions posed.
Kenney, K. (2009, Aug. 9). Fixing health care reform requires tort reform. Retrieved from http://www.npr.org/sections/money/2009/08/fixing_health_care_requires_to.html
Doroshow, J. (2009, Nov. 9). Medical malpractice tort reform-we are already suffering and don’t need more. Retrieved from http://www.huffingtonpost.com/joanne-doroshow/medical-malpractice-tort_b_350573.html
What must the plaintiff prove to prevail in a claim of medical malpractice? Clearly define this legal doctrine, including the element of this cause of action. How does medical malpractice differ from a standard negligence claim?
What defenses, if any, exist for a claim of medical malpractice?
Evaluate arguments for and against tort reform in the area of medical malpractice. You are encouraged to illustrate your arguments by using real case examples, either researched or from the material provided.
Include new thoughts or ideas based on the module information. This is your reflection/insight that logically would flow from each information point presented.
As a helpful explanation, in the area of torts we see many causes of action that are comprised of “elements.” For instance, if we discuss a situation involving negligence, we would define negligence stating, “Negligence occurs when a person’s conduct falls below the standard of care, resulting in a breach of duty which is the direct and proximate cause of injury to another person or thing. The elements of negligence are 1) duty; 2) breach; 3) causation; and 4) damages.” Then, each element would be analyzed, determining whether each one was met. It is imperative that each element of a tort claim is met for the plaintiff to prevail in a suit.
Your paper should be 2-3 pages in length
http://www.npr.org/sections/money/2009/08/fixing_health_care_requires_to.html
http://www.huffingtonpost.com/joanne-doroshow/medical-malpractice-tort_b_350573.html
Explanation / Answer
Medical Malpractice occurs when a health care provider deviates from the recognised standard of health care in the treatment of a patient.In such a situation the complaint has the prove that the medical care provider was negligent and has harmed the patient's health.
Ans.1-There are four questions that a plaintiff should answer to prevail in a claim for medical malpractice.
1) A duty of care, 2) Breach of duty, 3) Damages and 4) Proximate cause.
1. The duty of care - The physician owes a duty of care to the patient which arises from the special legal relationship between the doctor and the patient. The obligation is not just caring for the patient as he or she thinks fit but to abode by the standards of caring specified legally. Both the legal and clinical concept of caring has to be linked according to the standard care to the state.
2. Breach of duty- The physician is negligent and fails to meet the legal duties. In medical malpractice claim, the patient must prove that the doctor was negligent in carrying out his legal duties related to the treatment of his patient. Malpractice actions must contain allegations of negligent treatment and negligent prescription.
3. Damages - The patient here suffers from injuries due to the treatment. Malpractice is more than negligence. The damage may be physical, emotional or financial. The act of the physician that falls below the standard care related to the above three issues gives the plaintiff the right claim for medical malpractice. If the doctor's treatments fall below the standard care but there is no injury, it is not medical malpractice.It is only medical negligence. A bad outcome may not always be a medical malpractice. For example, if a patient dies after a successful operation, it's not medical malpractice.
4. Proximate cause - The damage done to the patient are directly related to the physician's negligence, then this can condition can be a crux of a lawsuit. The patient must prove that his/her injuries were a result of the doctor's action. The concept of proximate cause in grounded in foreseeability. If the patient's injury was a foreseeable consequence of medical negligence, the physician is liable for the injury for which the patient or his family can claim a compensation.This lawsuit is the most difficult to prove.
Medical malpractice is a subset of the 'Tort Law' which deals with professional negligence. The word 'tort' in Norman means wrong and the 'Tort Law' provides the remedies for professional and civil wrongdoing. In order to give the plaintiff justice, some standards of care have been framed by the tort law to which both the patient and the doctor should abide in order make their claims related to medical malpractice.
To illustrate the elements of claim we can take the simple example of a patient who has been admitted to the hospital after attempting suicide but commits suicide soon after being released from the hospital. The plaintiff(his family has to prove that-
1. The duty of care and breach of duty- The doctor(psychiatrist) should have performed a suicide assessment test on the patient before discharging him.
2. Damage - The patient died(committed suicide) soon after discharge
3. Proximate cause- Had the psychiatrist done the suicide assessment test on the patient before his discharge he would not have died.
Standards of care should be framed keeping in mind both the obligations of the patient and the doctor. Sometimes the patient's family are very un-cooperative and hide facts that lead to negligence and death of the patients. A doctor should always insist on the past treatment and health issues of a patient so that he can meet the standard of care without any hassles.
Standards of treatment should be specified for general practitioners and specialists. In the case of heart, ailments and cancer, the patient's mental state is very important. In such cases it the patient should not be agitated and treatments forced on them. My mother-in-law survived a massive heart attack only because the doctor was patient and handled her with utmost care. She didn't want a drip saline injection, to which he agreed and gave her medicines to which she gradually responded. A proper link between the patient, doctor and law should be there to regulate medical malpractice.