Medical Malpractice

Medical malpractice is a general term used to describe a treatment or lack of treatment that violates good and accepted standards of medical care.

To prevail in any medical malpractice case, the plaintiff (i.e., the patient/family) must prove three things: (1) negligence, (2) causation, and (3) injury. Stated differently, true medical malpractice exists where the act or omission of a physician, physician’s assistant, nurse practitioner, registered nurse, therapist, or other provider causes significant and permanent harm, or results in a wrongful death.

When deciding whether to pursue a claim for medical malpractice, it is critical that patients and their families understand the difference between medical malpractice from a theoretical point of view, and a meritorious lawsuit that should be pursued in civil court.

Theoretically, every medical error could form the basis of a medical malpractice lawsuit. However, the fact that an error occurred does not mean that patient has a case or, more importantly, that the case should be tried before a judge or jury for resolution. For example, where there is a bad outcome without a meaningful error, where there is a medical error that does not cause harm, or where a medical error causes an injury that is minor or temporary, the costs associated with prosecution of a claim may outweigh any potential recovery.

At the opposite end of the spectrum are meritorious claims that require skilled legal counsel and well-credentialed experts to prove how a medical misadventure caused harm, and to secure damages associated with a lifetime disability or loss of a loved one.

How often does medical malpractice occur?

Statistically, actionable medical malpractice is relatively uncommon given the quantity of medical services delivered throughout the country on a day-to-day basis. That being said, medical malpractice does occur and, depending upon the patient, the results can be catastrophic.

In 1991, a Harvard Medical Malpractice Study titled “Incidence of Adverse Events and Negligence In Hospitalized Patients,” was published in the New England Journal of Medicine. The study’s authors reviewed more than 30,000 patient records from hospitals throughout New York State and found that “adverse events” occurred in 3.7% of hospitalizations and that 27.6% of the adverse events were due to medical negligence. Stated differently, of the 30,000 records reviewed, there were 1133 adverse events — 280 of the adverse events were due to medical malpractice.

In 2006, additional medical malpractice statistics were published in the New England Journal of Medicine in an article titled “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” The authors reviewed 1400 closed malpractice claims from five malpractice insurance companies and concluded that 80% of claims were for what the medical reviewers considered to be “significant physical injury,” “major physical injury,” or death. The reviewers also concluded that the majority of claims were for injuries or death judged to be the result of a medical error.

In an effort to keep track of adverse events and improve patient safety, the Joint Commission On Hospital Accreditation (JCAHO) created the sentinel event database to collect reports from hospitals when a “patient safety event” results in death, permanent harm, or severe temporary and intervention required to sustain life. The last published review of the database revealed 2966 events, including: 370 wrong-site surgeries, 365 operative/post-operative complications, 326 medication errors, 221 deaths due to delayed treatment, 144 patient falls, 124 deaths of patients in restraints, 85 transfusion-related events, 57 infection-related events, 51 fires, and 49 anesthesia-related events.

What are the most common types of medical malpractice?

Common medical errors include the failure to timely diagnose and treat a stroke or heart attack, birth injuries, emergency room mistakes, improper diagnosis, cancer misdiagnosis, labor and delivery complications, retained foreign objects, surgical errors, prescription medication errors, negligent discharge, and misreading of diagnostic imaging (e.g., x-rays, MRI, CT).

Across all medical fields, approximately 7% of all physicians have a claim brought against them each year. Statistically, the medical specialties with the most claims are neurosurgery, cardio-thoracic surgery, obstetrics/gynecology, general surgery, plastic surgery, gastroenterology, urology, emergency medicine, orthopedic surgery, and internal medicine. While claims tend to involve some medical specialties more than others, medical malpractice can occur in any medical discipline or setting, including:

• anesthesiology
• bed sores
• birth injuries
• cardiology
• emergency medicine
• family practice
• failure to diagnose
• hospital negligence
• gastroenterology
• gynecology
• infections
• internal medicine
• intravenous fluid contamination
• informed consent
• medication errors
• nurse midwifery
• neurology
• nursing
• obstetrics
• oncology
• orthopedic surgery
• otolaryngology
• pediatrics
• radiology
• surgery
• urology