The Lawsuit of Medical Malpractice Exam
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The Lawsuit of Medical Malpractice Exam
Running Head: MEDICAL MALPRACTICE LAWSUIT 1
MEDICAL MALPRACTICE LAWSUIT 5
Term Paper “The Lawsuit of Medical Malpractice”
Marilyn Diaz
Professor George Ackerman
PLA4522 Health Care Law
July 17th, 2019
Abstract
This paper explores “Medical Malpractice” in the field of law in detailed explanation. The paper begins with an introduction to medical malpractice giving statistics and data. Data from the European Union is used to give a detailed illustration. The introduction is followed by elements of medical malpractice lawsuit, defenses to a medical malpractice lawsuit, ways of avoiding a medical malpractice lawsuit and the policy of medical insurance. The method used to gather information was reading of various articles on the subject. The results of the study revealed an increase in the number of medical malpractice cases. Results also revealed that some medical practitioners are using the defenses available in medical malpractice lawsuit to evade penalties. The study emphasizes on ways in which physicians can avoid malpractice by way of precautionary measures.
The Lawsuit of Medical Malpractice
Introduction
Medical malpractice is a precise kind of negligence defined as an act of omission by a physician during treatment of a patient that departs from accepted standards of practice in the health sector and causes an injury to the patient (Bal, 2009). In the last decade, medical malpractice has increased in Europe to double-digit percentage i.e. >50% in Eastern States, Great Britain and the Baltic, a maximum three-digit percentage i.e. 200-500% in Mediterranean area, Germany, the Iberian countries and Italy. France and Scandinavian counties have seen reduction in malpractice because of simplification of procedures and exemplary innovations.
The Special Eurobarometer on Medical Error in 2006 revealed that 80% of EU citizens view medical error as a key issue and close to 50% believed they would be tangled in a case of medical malpractice. This revealed that the public has become aware that claims of medical malpractice against health practitioners can be successful. In Sweden and Denmark between 2005-2010, the ratio of approval for compensatory claims rose to 40%, the average settlement of around €30,000 per case in EU countries. The European Hospital and Healthcare Federation Standing Committee estimates cost of coverage to be in excess of 200%. Costs fluctuated between 9 and 15 euros per capita with Britain exhibiting the highest figures (Ferrara, 2013).
Elements of a Medical Malpractice Lawsuit
The burden of proof in a Medical Malpractice Lawsuit lays on the plaintiff. The plaintiff needs to prove all the elements of medical malpractice in order to stand chance of success in a courtroom.
Existence of physician-patient relationship. Breach of duty of cared owed to patient by physician. Duty upheld at a professional standard of care. Duty of the physician to the patient established by the relationship. Patient sustained a resulting injury. Injury was caused by the physician’s breach (Bal, 2009).
The Defenses to a Medical Malpractice Cause of Action
In a medical malpractice lawsuit, the plaintiff must prove the four elements of negligence namely causation, duty, damages and breach. However, a lawsuit can still be defeated even if all four elements are satisfied when any of the following defenses is brought forth: Statute of limitations, Contributory negligence, Comparative negligence, Emergency and Assumption of risks.
Statute of Limitations. Evidence should be brought forward in a timely manner when it is reliable, fresh and accurate. The practitioner in question gets repose i.e. relief from worry of lawsuit being brought during an indefinite period. The statute of limitation is the time period within which a lawsuit can be brought before a court. The states of California, Ohio and Tennessee however have a 1year limit on medical claims. Attempts by the defense to raise it to bar recovery meet hostile from the court as it deprives the plaintiff of a legitimate claim (Elam v Menzies , 2010).
Contributory and Comparative Negligence. Contributory negligence states that the defendant can prevent the suit from succeeding if proven victim was at fault too. Law changed to comparative negligence in which the amount of damages is proportionately reduced by the percentage of plaintiff’s contributory fault. Currently it’s functional in all jurisdictions except five. An example is: if plaintiff is 20% negligent, he/she will only be able to recover 80% damages. Some states however don’t allow plaintiff to recover if he/she is more than 50% negligent. The doctrine of “Avoidance of Consequences” allows the plaintiff an opportunity to mitigate which is to avoid or reduce adverse consequences. Contributory negligence works together with the tortfeasor’s act.
Assumption of risk. This defense states that should the plaintiff be aware of the risk he/she is being exposed to and voluntarily accept the risk then there won’t be a recovery should harm occur. The two elements constituent are: approval to relinquish all claims for damages and full knowledge of the risks. A patient voluntarily and effortlessly sought natural herb treatment in California for breast cancer after rejecting conventional therapy. Doctors gave her full disclosure on the experimental treatment leading to court dismissing her claim on this ground. Patient assumed risk of harm by issuing informed consent to experimental treatment (Schneider v Revici, 1987).
Emergency. The cardinal principle here is whether delay in order to obtain consent before commencing with treatment would lead to harm to patient (Tan, 2010)
.The Lawsuit of Medical Malpractice Exam
Ways of Avoiding a Medical Malpractice Lawsuit
As proven in cases of medical malpractice, doctors should be keen with the following categories of things: protocols/guidelines, documentation, referrals, patient care/diagnosis and physician skills.
Patient care and diagnosis. Doctors should show care to patients, try different methods in treating patients, personally see and interpret the results of patients and never to forget checking vital signs during procedures.
Referrals. “The best doctors are the ones who call for help when they need it” is a famous saying in medical malpractice defense system. Keep ego aside and consult. Monitor the Midlevel Providers for liability befalls the physician in case of negligence on part of Midlevel Providers.
Communication. Communicate not only to patients but their families explaining the process. Directly talk to consultants calling them directly not forgetting to relay your concerns. Whenever a physician is on weekends, holidays or it’s at night, communication is important. Any accidents that occur bar communication from the physician have a cause for action.
Documentation. Know how to use the Electronic. Charts should be done on time. Any medication alert in the EMR should be given attention.
Physician skills/Continuing Medical Education. Medical records should not be shared with family members or friends. Work stuff like patient’s record should be kept out of social media like Facebook.
Protocols/Guidelines
They have approval of different doctors from diverse fields. Physicians should explain any deviation from set protocols and guidelines (Bono, 2019).
Medical Malpractice Insurance
It’s errors and omissions coverage protecting medical practitioners from negligent claims by patients. It is also called medical professional liability insurance. There are essential policies when shopping for a medical malpractice insurance.
Claims. Provide protection if a physician fails to follow accepted standards of care.
Medico-legal complaints. This is when a physician’s communication skills, conduct or decision-making is questioned.
Good Samaritan Act. Provides physicians protection when they offer care in an emergency situation to allow them focus solely on patient’s needs.
Vicarious Liability. Protects physicians for patients’ injury even when not in their control.
Unintentional intellectual property infringement. The physician and owner are protected for intellectual rights infringement.
Legal representation costs. Defense cost associated with a malpractice case can be substantial.
Optional extension. They offer tailor-made insurance policy suit a physician’s needs.
Automatic run-off cover. Protection against any future liabilities when you cease to practice via retirement or otherwise (Hambali, 2014).
References Bal, B. (2009). An Introduction to Medical Malpractice in the United States. Clinical orthopaedics and related research (Vol. 467(2)). Bono, M. J. (2019). Medical Malpractice. NCBI. Elam v Menzies , 594 F. 3d 463 (6th Circuit 2010). Ferrara, D. (2013). Medical malpractice and legal medicine. In Intenational Journal of Legal Mdicine (Vol. 127, pp. 541-543). Hambali, S. K. (2014). A review of medical malpractice issues in Malaysia under Tort litigation sytem . Global Journal of Health Sciences, 76-83. Schneider v Revici, 817 F.2d 987 (2rd Circuit 1987). Tan, S. Y. (2010). Medical Malpractice: A Cardiovascular Perspective. Cardiovascular Therapeutics, e140-e145.
The Lawsuit of Medical Malpractice Exam
RUBRIC
Excellent Quality
95-100%
Introduction 45-41 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Literature Support
91-84 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Methodology
58-53 points
Content is well-organized with headings for each slide and bulleted lists to group related material as needed. Use of font, color, graphics, effects, etc. to enhance readability and presentation content is excellent. Length requirements of 10 slides/pages or less is met.
Average Score
50-85%
40-38 points
More depth/detail for the background and significance is needed, or the research detail is not clear. No search history information is provided.
83-76 points
Review of relevant theoretical literature is evident, but there is little integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are included. Summary of information presented is included. Conclusion may not contain a biblical integration.
52-49 points
Content is somewhat organized, but no structure is apparent. The use of font, color, graphics, effects, etc. is occasionally detracting to the presentation content. Length requirements may not be met.
Poor Quality
0-45%
37-1 points
The background and/or significance are missing. No search history information is provided.
75-1 points
Review of relevant theoretical literature is evident, but there is no integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are not included in the summary of information presented. Conclusion does not contain a biblical integration.
48-1 points
There is no clear or logical organizational structure. No logical sequence is apparent. The use of font, color, graphics, effects etc. is often detracting to the presentation content. Length requirements may not be met
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