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.
