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An Overview...
Malpractice,
a wrongful act by a physician, lawyer, or other professional that
injures a patient or client. The patient or client may file a civil
lawsuit to recover damages (money) to compensate for the injury.
The professions in which malpractice can occur require specialized
training and study, and professionals in these fields must exercise a
high degree of judgment in performing tasks generally beyond the skill
of laypeople. In addition to law and medicine, these professions include
dentistry, accounting, engineering, and architecture. Medical or legal
malpractice lawsuits are far more common than those involving other
professions.
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MALPRACTICE LAWSUITS
Malpractice
is a special type of tort. A tort is a civil wrong that permits an
injured party to sue for compensation for damages caused by the harmful
conduct of another person. One common type of tort arises when a driver
fails to exercise due care (ordinary care) while operating an automobile
and causes an accident that results in injury to others. Malpractice and
other torts have these three features in common: they involve a person
who has a duty of care toward others, a failure to exercise due care,
and an injury or other monetary damages caused by that failure.
Because
malpractice cases involve members of a profession, many of the issues
that arise are more complex than the issues in other tort cases. When an
automobile driver runs a red light or speeds, the driver clearly has
created a danger for other people on the highway and will be held liable
if the dangerous driving results in an accident. In many malpractice
cases, however, it is not as clear what the exercise of due care means.
Often there are alternative ways to treat a patient or handle a legal
issue. In a malpractice action, an expert in the field may have to
testify about whether the conduct of the defendant (the professional)
fell below what is expected of a professional in that field. It may also
be difficult to establish whether the conduct of the defendant caused
the injury to the plaintiff (the party seeking damages). A medical
patient's health may have declined or a client in a lawsuit may have
lost a case, regardless of whether the doctor or lawyer actually made an
error. The plaintiff in a malpractice case must prove that the injury
would not have occurred in the absence of the allegedly improper
conduct.
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MEDICAL MALPRACTICE
Medical
malpractice is the most common type of malpractice lawsuit. It typically
involves the negligence of a physician while diagnosing or treating a
patient. In the past, courts decided whether a physician's conduct was
negligent by comparing that conduct with the practices in the locality
where the doctor worked or with the practices of his or her field of
medicine. These comparisons made it difficult for injured patients to
win malpractice lawsuits. Other doctors who could describe the practices
in the locality were often reluctant to testify against their
colleagues. More recently, courts have applied a national standard for
professional conduct when determining whether malpractice occurred.
A small
proportion of medical malpractice cases result from the intentional
misconduct of the physician, such as improperly touching a patient who
is unconscious. However, plaintiffs who are harmed in such a manner
typically charge that the physician committed battery, an intentional
tort, rather than alleging malpractice. A physician may also commit
malpractice by doing something without obtaining the patient's informed
consent. For example, a doctor may commit malpractice by giving a
patient an experimental drug without first informing the patient about
potential risks or side effects, and then obtaining the patient's
consent to use the drug.
Most
physicians purchase insurance to protect themselves from the high cost
of malpractice lawsuits. In the mid-1970s and again in the mid-1980s,
insurance companies sharply increased the cost of medical malpractice
insurance. Many reasons for the rising costs were suggested. Some people
blamed the insurance industry, claiming that insurance companies charged
excessive amounts. Others claimed that lawyers were to blame because
they brought far too many medical malpractice actions, including many
that had no merit. Still others charged that the rise in litigation was
the result of increasingly complex and specialized medical practices
associated with the development of new medical procedures, equipment,
and medications.
In response
to the rapid rise in insurance costs (and the resulting increase in the
cost of health care), many states passed legislation designed to reform
tort law. These reforms provided various restrictions on medical
malpractice suits, including limitations on the amount of damages that
could be awarded or the fees that an attorney could receive. Some states
adopted procedural restrictions, such as shortening the time period in
which a plaintiff is permitted to file a claim or requiring plaintiffs
to submit their claims to screening panels that review the claims and
attempt to resolve disputes prior to litigation.
These reform
statutes have generated controversy. A number of state supreme courts
have found various measures to be in violation of state constitutional
protections. For example, courts have invalidated laws that seriously
limit the rights of plaintiffs to file suit or that severely limit
damage awards. As the rise in medical insurance costs tapered off at the
end of the 1980s, the pressure to reduce malpractice actions also
diminished.
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LEGAL MALPRACTICE
The other
common type of professional malpractice lawsuit occurs when a client
sues his or her former attorney. A large number of legal malpractice
actions involve claims that an attorney representing a client in court
made an error that harmed the client. The plaintiff must prove that the
prior trial would have had a different result if the attorney had not
acted negligently. This may require the plaintiff in the malpractice
action to retry the prior case as part of the legal malpractice
lawsuit-a complex and time-consuming process.
Identifying
the party to whom an attorney is responsible can be a controversial
issue in legal malpractice actions. Traditionally, attorneys are
obligated to protect their clients and no one else. In many cases,
however, the improper conduct of an attorney may injure someone other
than the client. For example, if an attorney improperly drafts a
client's will, the heirs-rather than the client-will be harmed. Courts
have begun to show more willingness to hold attorneys liable for
injuries to third parties whose damages could have been anticipated.
Rules governing who can sue for legal malpractice damages vary widely
between states.
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"Malpractice." Microsoft® Encarta® Encyclopedia 2001. © 1993-2000
Microsoft Corporation. All rights reserved.
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