Medical malpractice is negligence committed by act or omission on the part of a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with the great majority of cases involving medical error.

     In medical malpractice cases, the plaintiff is the patient or his legally designated party acting on his behalf; where the patient has died, as in the case of a wrongful-death suit, the executor or administrator of a deceased patient’s estate is the plaintiff.

     The defendant is the health care provider which usually refers to a physician or medical doctor (M.D.).  However, the term really includes any medical care provider, which are defined as dentists, nurses, therapists, psychiatrists and chiropractors.  Additionally, “following orders” may not protect nurses and other non-physicians from liability when committing negligent acts at the direction of a supervising “M.D.”  Furthermore, relying on a theory of vicarious liability, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Elements of the case

     A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.  These elements are: 1) Duty, 2) Breach of that Duty, 3) Breach was legal cause of the injury, and 4) Damages.  In the context of a medical malpractice claim, those elements are generally satisfied in the following manner:

1. A duty was owed because a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient;
2. That duty is breached when the provider failed to conform to the relevant standard care;
3. The breach caused an injury; and
4. Either physical, pecuniary or emotional damages.

     It should be noted that without damages, there is no basis for a claim, whether the medical provider was negligent or not.  However, the existence of damages alone is not sufficient for a claim to exist, as when a patient dies from a fatal disease.  In both those cases, some “medical error” must occur.

Medical Error

     In general, a medical error occurs when a health-care provider chooses an inappropriate method of care or executes the appropriate method incorrectly.  A 2000 Institute of Medicine report estimated that medical errors are estimated to result in about between 44,000 and 98,000 preventable deaths and 1,000,000 excess injuries each year in U.S. hospitals.

     In another study conducted in 2001 for the Journal of the American Medical Association of seven Department of Veterans Affairs medical centers, it was estimated that 1 out of every 10,000 patients admitted to those hospitals died prematurely because “optimal” care had not been provided.

     In 2006, another Institute of Medicine study found that medication errors are among the most common medical mistakes, accounting for at least 1.5 million injuries per year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics.

Generally, medical errors are associated with the following causes:

1. Inexperienced physicians and nurses,
2. New procedures,
3. Extremes of age,
4. Complex care and urgent care.
5. Poor communication, improper documentation, illegible handwriting,
6. inadequate nurse-to-patient ratios, and
7. similarly named medications are also known to contribute to the problem.

 The Cost of Being Human

     Unfortunately, the great majority of medical malpractice claims occur as a consequence of the frailty of humans.  For example, sleep deprivation has been cited as a contributing factor in medical errors. One study found that being awake for over 24 hours caused medical interns to double or triple the number of preventable medical errors, including those that resulted in injury or death.  Other factors contributing to medical malpractice claims are:

• Fatigue;
• Depression and burnout;
• Diverse patients, unfamiliar settings, time pressures;
• Drug names that look alike or sound alike.

• Misdiagnosis of an illness, failure to diagnose or delay of a diagnosis.
• Administering the wrong drug or administering that drug to the wrong patient, at the wrong time and/or in the wrong dose;
• Administering two or more drugs that interact in an adverse or dangerous manner;
• Wrong-site surgery, such as amputating the wrong limb;
• Leaving surgical instruments inside a patient, such as a surgical sponge being left behind; inside the patient after surgery;
• Transplanting organs of the wrong blood type;
• Poor record-keeping.