Medical Malpractices Lawsuits and Their Changing Nature - Essay Example

? Medical Malpractices Lawsuits and Their Changing Nature Outline THESIS: The law on medical malpractice has been changing for a long time ever since the Common English Law. I. The jurisdiction of medical malpractice laws in the country traditionally was the preserve of state governments and not under the federal government. II. Steps involved in a suit in medical malpractice are: A. The injured patient must establish that the injuries suffered are a result of care received. B. The second step involves the establishment of a physician-patient relationship. C. Establishing that the care received was not standard care. D. The fourth step is establishing the causation in the medical malpractice suit. E. Finally, there is passing of judgment and the sentence based on evidence adduced. III. Discussions on the changing nature of medical malpractice suits influenced by the lack of national standards and federal government laws and statutes while using several examples in various states IV. The rising costs of damages in medical malpractice that underlines the need for further reform in medical malpractice laws. V. Conclusion and further suggestions for reforms in medical malpractice law Medical Malpractices and Their Changing Nature The law on medical malpractices and insurance has been under scrutiny and focus for many years across the United States and over the world. In recent years, Washington is realizing the need to support legislation meant to put a cap on the amount of litigation while restricting the amount of awards on damages resulting from medical malpractice suits. Setting the agenda forth for limiting litigations and award for damages from medical malpractices, Treaster and Brinkley noted that former President Bush “complained about the 'skyrocketing' costs of 'junk lawsuits' against doctors and hospitals.” Therefore, these increases in costs result to high premiums on medical malpractice and a reduction on available coverage especially to specialists whose practice entailed treating high-risk patients. On one hand, there is a strong belief that the tort system is the main problem since it encourages irrational judgments and settlements. In addition, the system also promotes defensive medical practices while encouraging excessive litigation. On the other hand, there are those who belief that the blame squarely lies on the insurance market for medical malpractice. This expose elucidates on the issues central to medical malpractice suits and their changing nature. Therefore, the expose begins by giving an overview on the operations of medical malpractices law and the procedure towards the awarding of damages in a medical malpractice lawsuit. After an analysis of medical malpractice law and lawsuits, the expose gives an investigation of the changing nature of medical malpractice law. Thereafter, there is an in-depth investigation of the cost factor in damages awarded to patients harmed by medical practitioners while finally the paper proposes further reforms in the tort law on medical malpractice in the concluding part of the expose. Medical Malpractice Law and Suits The jurisdiction of medical malpractice laws in the country is traditionally the preserve of state governments and not under the federal government. In this regard, the legal rules and the operational framework that guided medical malpractices were precedents from states courts instead federal laws and statutes. Thus, medical malpractice laws were common laws since they were legal rules established by the state courts. In this effect, since the laws set in judgment and settlement from a state has no weight in another state, the laws and framework for handling medical malpractices varied, and still does to some extent today, from one state to the other state regardless of similar principles. Speiser points out that, the law on medical malpractice has its origin from English common law of the nineteenth century. However, the law that developed to medical malpractice law is an element of the law of tort dealing with awards to damages due to injuries on people and property (qtd. in Budetti and Waters). In this regard, the law on medical malpractice is an example of negligence, which is one category of tort. According to the tort law on negligence, people are responsible for what they controlled and failure to exercise reasonable responsibility on their actions makes them liable to any damages caused due to negligent acts resulting to damages caused (Budetti and Waters). In effect, doctors are responsible for any injuries on their patients in the process of giving treatment and care. In order for an injured individual to win a negligence suit, they should prove that the care given to them in a medical facility was substandard in terms of quality. Thus, this process involves a procedure that involves a certain series of steps. In the first step, the injured person must determine whether the damages or injuries they have are a result of inadequate care they received in a medical facility. In this regard, it is pertinent to point out that it is not a legal requirement for physicians and health care providers to inform their patients that their injuries are a result of medical care received. In effect, it is the responsibility of the patient to make the determination and relate the substandard care received to the resulting injuries. Nevertheless, Baker notes that the American Medical Association code of ethics requires medical practitioners and physicians to disclose to their patients of any mistake resulting from a medical complication. On the other hand, there might be instance in which a patient may develop complications while receiving treatment from multiple provides. Under such circumstance, the patient should determine which amongst the providers they received care from contributed to the injuries. The moment the plaintiff brings their suit on medical malpractice, the next process necessitates showing sufficient prove that they indeed were under the care of the medical provider or the physician they were suing. In this regard, the plaintiff has to establish a physician-patient relationship in order for the suit to progress to the next stage. The underlying idea in this case is that physicians and healthcare providers have an obligation to their patients only. In effect, these physicians and healthcare providers should exercise rational and practical care while treating their patients (Baker). Once there is a clear establishment of the physician-patient relationship, the next step involves the plaintiff showing that they never received care and treatment that met the appropriate standards from the particular provider or physician (Baker). In effect, this step forms the heart of the negligence suit and it is the most critical step. However, it is essential to point out that the level of care that patients received has had a substantial change over time. In this regard, community doctors and other physicians’ level of performance was the same and there were no expectations of any of the group to perform on different levels while treating their patients in previous years. Nevertheless, current suits have a clear indication of physicians following national standards of care and practice while treating their patients. In this regard, these national standards are circumstances of practice by all physicians in the same category. In effect, a physician should ensure that they practiced medicine in the same way, as would an average specialist in a related field of practice would, regardless of their location (Baker). Although a patient might prove that the physician or provider gave care that failed the appropriate standards, it is crucial for the patient to establish how the care received caused them harm. In this regard, this step involves showing causation in a suit, which is a challenging step for the plaintiff. One main reason why this step is challenging is that the patient might be seriously ill even after receiving medical care, which might not be a result of negligence on the part of the physician. In addition, it is a challenge to identify the particular provider who failed to offer care and treatment of appropriate standards in a case that involved multiple providers. Once the plaintiff succeeds in establishing causation however, the suit moves to the final stage (Baker). In the final stage of a medical malpractice suit, there is an establishment of the amount of money given to the plaintiff as awards of the harm and injury caused. In this regard, the judge’s assessment is that the plaintiff’s establishment that injuries suffered due to negligence during treatment and care is solid and beyond reasonable doubt (Baker). In effect, the ruling on the amount a plaintiff receives becomes the challenging part to the judge awarding payments known as damages due to a provider or physicians negligent acts. Therefore, it is crucial to point out that the process of awarding damages is a challenge since it takes into consideration economic losses on two different perspectives. In the first perspective, the process considers the lost wages resulting from the injuries the plaintiff suffered. Secondly, the other perspective considers the amount of future medical costs resulting from the injuries caused. In addition to the economic losses resulting from the injuries suffered, the judge considers non-economic perspectives in determining the amount of damages. In this regard, the judge considers losses such as pain and suffering resulting from the injuries caused with this process of determining the damages remaining contentious overtime (Shandell and Smith). Changing Nature of Medical Malpractices Suits Throughout medical malpractice suits, the most challenging, and perhaps the most contentious stage, has been proving that the medical practitioner acted in contravention of the standard of care. In this case, the main reason why this is contentious is that the stage involves finding fault on the medical practitioner and ultimately blaming the practitioner for injuries a patient suffered during care. Under common law, this was an establishment of whether the defendant was reasonably careful and was under the jury (Shandell and Smith). However, medical malpractice lawsuits require the services of qualified medical experts to testify in the case while giving out their opinion whether a practitioner met the required standards of care when treating the plaintiff (Baker). Nevertheless, getting these qualified experts proved to be a challenge since there were no national standards but local standards and practitioners were not willing to testify against their peers. Effectively, states sought the services of professional witness who moved from one courtroom to the other testifying in lawsuits related to medical malpractice (Budetti and Waters). However, common sense dictates that such experts may make defendants perceive them as individuals whose testimony might compromise the case and effectively proving the negligence system to be unfair. Therefore, this fact led to states implementing a raft of measures leading to the changes in the nature of medical malpractices starting with the experts assigned to testify being the first of these measures (Budetti and Waters). Different states established a different set of standards regarding the experts who testified in medical malpractice lawsuits. One of these standards regards the qualification of the physician with most states enacting legislation that ensured the expert witness had similar qualifications to the medical practitioner facing the malpractice suit. For example, there is a West Virginia law on medical malpractices suits that provides that a witness in a suit must have training and practice similar to those of the defendant in addition to devoting about two-thirds of their time to practice or teaching in the fields of their professional specialties (Budetti and Waters). In effect, such experts do not compromise the outcomes of the suit since they are professional practitioners on a similar level with the accused. On the other hand, some states established a response meant to enhance the determination and authenticity of charges in the lawsuits by having the suits screened by a panel consisting of qualified medical practitioners before the suit proceeded to the trial stage in a court (Budetti and Waters). Such a framework is important to determine the admissibility and merit of the lawsuit. In addition, the review offers the parties a chance to settle the litigation out of court. However, it is important to point out that such panels do not prevent the cases going to full trial. On the other hand, some states admits the evidence adduced in the review stage of the case while other do not admit the evidence once the cases progress to trial in court. Case in point, the state of Alaska considers evidence from a review panel consisting of experts appointed by the court as admissible during the trial stage (Budetti and Waters). In another changing nature of medical malpractice law, numerous states have Alternative Dispute Resolution procedures meant to act as options to taking lawsuits to court (Budetti and Waters). In this regard, some states allow medical practitioners to make it a requirement that resolutions concerning disputes with their patients could go to an arbitration panel instead of going through a judicial process. On the other hand, some states allowed arbitration to be voluntary with the role of the state only being that of an enforcer of the agreements made during arbitration. Case in point, the state of Connecticut’s medical malpractice laws does not necessitate the need of arbitration. However, the findings from the arbitration panel are admissible during the trial stage of the lawsuit (Budetti and Waters). With all these changing laws, the longstanding problem that currently underlines the need for medical reforms is the rising cost of damages resulting from medical malpractice suits. Medical Malpractice Costs and the Need for Reform Overall, the very last three decades of the past century saw the responsibility of state courts setting precedents in medical practices taken away by established statutes and laws by state governments (Budetti and Waters). In addition, premiums for malpractice have sharply risen and effectively putting pressure on state to governments to change their statutes related to medical malpractices. Although states have been on the frontline for legislating on torts related to medical malpractices, the federal government should also ensure a raft of measures in place to reform the medical malpractices justice system and ensure that there were national laws in place that guided the whole country with similar standards applying across states. Such federals laws are crucial in overriding some of the inconsistent state statutes related to torts in medical malpractices. Stakeholders in the medical sector criticize medical malpractice litigation as very expensive, impulsive, inefficient, and hostile to the patients and medical practitioners. Indeed, President Bush supported this claim by stating that such high cost ‘‘does not start in an examining room or an operating room, they start in a courtroom” (qtd. in Treaster and Brinkley). Therefore, the process of awarding damages in a court appeared to be the problem as various researchers further proves. According to Towers Watson, medical malpractice litigation costs have been on the increase at a rate of around 12 percent every year since 1975. This is attributable to various factors most important among them being the lack of federal government’s legislation meant to rein in the increase of these costs. Increases in these medical malpractices awards may cause doctors to go out of business or in some other cases move their services to states that have favorable tort systems. Case in point, the state of Texas carried out reforms on medical liability in 2003. As a result, there was an influx of new physicians with most saying that their move to the state was a result of the reforms in medical liability favorable for practice. According to the Texas Medical Board, applications for medical license application rose by 58 percent in 2003 (qtd. in Sorrel). Therefore, the implementation of reforms on torts is a factor guiding such an unprecedented influx of physicians. On the other hand, the Texas Insurance Department pointed out that there was a 25 percent decline in the number of medical liability rates after the implementation of these reforms. Thus, lack of reforms in medical malpractices liabilities was prohibitive in terms of a rise in physicians’ practices as the case of Texas exemplifies that reforms increased the number of medical practitioners. President Obama acknowledges this fact by stating that the country faced a challenge of having efficient medical care system “if doctors feel like they are constantly looking over their shoulder for fear of lawsuits” (qtd. in Nussbaum). In effect, this emphasizes the more rationale behind the need of reforms on torts related to medical malpractices. Conclusion Based on the foregoing, one important reform area required is the institution of limits on the liability that a physician should meet as damages awarded on injuries caused. In this regard, such a policy is crucial towards cushioning the physicians on the amount of damages payable. Case in point, the state of South Carolina has a Patient Compensation fund that meets amounts of damages above $200,000 in one incident (Budetti and Waters). Such a fund is crucial since physicians will only be responsible for a certain amount of damages payable to their patients. Therefore, this crucial reform area on a national level by all states can ensure medical practitioners operated without fear of paying excessive damages due to any issue of medical malpractice that may arise. According to Mello, experts in the medical field point out that there is an increasing conflict between the system of medical malpractice and formulating policies aimed at improving the safety standards and quality of care. In this regard, studies from the Institute of Medicine and other related research point out that insufficient systems meant to improve the quality of care leads to human error during treatment (qtd. in Budetti and Waters). In effect, such research argument is that injuries caused to patients are a result of inadequate facilitates for quality care and not a result of human negligence. In this regard, the best way of dealing with this emerging issue is ensuring reforms that linked changes on tort laws to improvement in quality care and the safety of patients. For example, it would be a novel idea to establish tort reforms that ensured there were caps on damages physicians paid due to medical malpractices when efforts of the physician towards reducing errors are clear in the suit. From the foregoing, it is evident that standards of care are having a national outlook. Nevertheless, the standards of care, in both the local and national cases, have a basis on what physicians will widely regard as acceptable and appropriate medical procedures. In this regard, courts should exercise prudent judgment by holding medical practitioners responsible to standards, which is a reflection of what is impossible depending on the available scientific and technological facilities in medicine within the reach of physicians. In effect, such an approach is crucial in considering that a medical practitioner delivered quality care within the best ways possible regardless of prospects of better care. Works Cited Baker, Tom. The Medical Malpractice Myth. Chicago: University of Chicago Printing Press, 2005. Print. Budetti, Peter P., and Teresa M. Waters. Medical Malpractice Law in the United States. Menlo Park: The Henry J. Kaiser Family Foundation, 2005. Print. Nussbaum, Alex. “Malpractice Lawsuits Are ‘Red Herring’ in Obama Plan (Update1).” Bloomberg. 16 Jun. 2009. Web. 26 Feb. 2012. < http://www.bloomberg.com/apps/news?pid=newsarchive&sid=az9qxQZNmf0o>. Shandell, Richard E., and Patricia Smith. The preparation and trial of medical malpractice cases. New York: Law Journal Press, 1990. Print Sorrel, Amy Linn. “Texas liability reforms spur plunge in premiums and lawsuits.” American Medical News. 8 Sep. 2008. Web. 26 Feb. 2012. < http://www.ama-assn.org/amednews/2008/09/08/prl20908.htm>. Treaster, Joseph B., and Joel Brinkley. “Behind Those Medical Malpractice Rates.” The New York Times. 22 Feb. 2005. Web. 26 Feb. 2012. . Towers Watson. U.S. Tort Cost Trends: 2010 Update. towerswatson.com. 2010. Web. 26 Feb. 2012. < http://www.towerswatson.com/assets/pdf/3424/Towers-Watson-Tort-Report- 1.pdf>. Read More