medical malpractice in the united states medical malpractice in the united states medical malpractice is professional negligence by act or omission by 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 most cases involving medical error. claims of medical malpractice, when pursued in us courts, are processed as civil torts. sometimes an act of medical malpractice will also constitute a criminal act, as in the case of the death of michael jackson. part of the common law seriestort law (outline) trespass to the person assault battery false imprisonment intentional infliction of emotional distress property torts trespass land chattels conversion dignitary torts appropriation defamation false light slander libel invasion of privacy intrusion on seclusion breach of confidence abuse of process malicious prosecution sexual torts alienation of affections criminal conversation seduction breach of promise negligent torts negligent infliction of emotional distress employment-related entrustment malpractice legal medical principles of negligence duty of care trespassers licensees invitees standard of care reasonable person proximate cause res ipsa loquitur restitutio ad integrum rescue doctrine duty to rescue comparative responsibility contributory negligence attractive nuisance strict and absolute liability product liability ultrahazardous activity m. c. mehta v. union of india deep pockets nuisance public nuisance rylands v fletcher economic torts conspiracy restraint of trade insurance bad faith (american law) fraud tortious interference defences assumption of risk consent necessity statute of limitations self-defense defense of others defence of property shopkeeper's privilege neutral reportage liability intentional torts last clear chance eggshell skull vicarious liability respondeat superior volenti non fit injuria ex turpi causa non oritur actio joint and several liability market share liability transferred intent remedies damages punitive special incidental injunction tracing detinue replevin trover other topics in tort law tort reform non-economic damages caps quasi-tort delict (term used for torts in some civil and mixed legal systems) conflict of tort laws private attorney general class action by jurisdiction america australia canada china mainland and historical republic of china europe england and wales india japan other common law areas contracts criminal law evidence property wills, trusts, and estates law portal medical professionals may obtain professional liability insurances to offset the costs of lawsuits based on medical malpractice. further establishment of conditions of intention or malice may be applied where applicable. frequency and cost of medical errors back in 1984, the extrapolated statistics from relatively few records in only several states of the united states estimated that between 44,000 and 98,000 people annually die in hospitals because of medical errors. much work has been done since then, including work by the author of that study who moved on from those low estimates back in the 1990s. for example, the centers for disease control and prevention currently says that 75,000 patients die annually, in hospitals alone, from infections alone - just one cause of harm in just one kind of care setting. from all causes there have been numerous other studies, including "a new, evidence-based estimate of patient harms associated with hospital care" by john t. james, phd that estimates 400,000 unnecessary deaths annually in hospitals alone. using these numbers, medical malpractice is the third leading cause of death in the united states, only behind heart disease and cancer. less than one quarter of care takes place in hospitals. across all care settings the numbers are higher. another study notes that about 1.14 million patient-safety incidents occurred among the 37 million hospitalizations in the medicare population over the years 2000–2002. hospital costs associated with such medical errors were estimated at $324 million in october 2008 alone. approximately 17,000 malpractice cases are filed in the u.s. each year. the medical malpractice claim the parties the plaintiff is/ was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful death suit – the executor or administrator of a deceased patient's estate. the defendant is the health care provider. although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. as illustrated in columbia medical center of las colinas v bush, 122 s.w. 3d 835 (tex. 2003), "following orders" may not protect nurses and other non-physicians from liability when committing negligent acts. relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees and contractors. common claims in 2013, bmj open performed a study in which they found that "failure to diagnose" accounted for the largest portion of medical malpractice claims brought against health professionals. furthermore, the study found that the most common result of this negligence was death of the patient. the other most common categories of malpractice include negligent treatment and failure to warn. thus, when a patient claims injury as the result of a medical professional's care, a malpractice case will most often be based upon one of three theories: failure to diagnose: a medical professional is alleged to have failed to diagnose an existing medical condition, or to have provided an incorrect diagnoses for the patient's medical condition. negligent treatment: a medical professional is alleged to have made a mistake that a reasonably competent professional in the same position would not have made. failure to warn: a medical professional is alleged to have treated the patient without first warning the patient of known risks and obtaining the patient's informed consent to that course of treatment. elements of the case a plaintiff must establish all five elements of the tort of negligence for a successful medical malpractice claim. a duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient. a duty was breached: the provider failed to conform to the relevant standard care. the breach caused an injury: the breach of duty was a direct cause and the proximate cause of the injury. deviation from the accepted standard: it must be shown that the practitioner was acting in a manner which was contrary to the generally accepted standard in his/her profession. further establishment of conditions of intention or malice where applicable. damage: without damage (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. likewise, damage can occur without negligence, for example, when someone dies from a fatal disease. in cases involving suicide, physicians and particularly psychiatrists may be to a different standard than other defendants in a tort claim. in most tort cases, suicide is legally viewed as an act which terminates a chain of causality. although the defendant may be held negligent for another's suicide, he or she is not responsible for damages which occur after the act. an exception is made for physicians who are found to have committed malpractice that results in a suicide, with damages assessed based on losses that are proved likely to accrue after the act of suicide. the trial like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. however, unlike other tort cases, many states require that a plaintiff take specific steps before a medical malpractice lawsuit can be filed, such as providing the defendant with advance notice of intent to sue, obtaining and filing with the court a certificate of merit from a qualified medical expert who attests to the validity of the plaintiff's cause of action, submitting the claim to a panel of legal and medical experts for evaluation, or participating in mediation in an attempt to resolve the claim without litigation. between the filing of suit and the trial, the parties are required to share information through discovery. such information includes interrogatories, requests for documents and deposition. if both parties agree, the case may be settled pre-trial on negotiated terms. if the parties cannot agree, the case will proceed to trial. the plaintiff has the burden of proof to prove all the elements by a preponderance of evidence. at trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. the fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible. the fact-finder will render a verdict for the prevailing party. if the plaintiff prevails, the fact-finder will assess damages within the parameters of the judge's instructions. the verdict is then reduced to the judgment of the court. the losing party may move for a new trial. in a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. in most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. either side may take an appeal from the judgment. expert testimony expert witnesses must be qualified by the court, based on the prospective experts qualifications and the standards set from legal precedent. to be qualified as an expert witness, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. the qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. expert testimony is not qualified "just because somebody with a diploma says it is so" (united states v. ingham, 42 m.j. 218, 226 ). in addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliability. in the united states, two models for evaluating the proposed testimony are used: the more common (and some believe more reliable) approach used by all federal courts and most state courts is the 'gatekeeper' model, which is a test formulated from the us supreme court cases daubert v. merrell dow pharmaceuticals (509 u.s. 579 ), general electric co. v. joiner (522 u.s. 136 ), and kumho tire co. v. carmichael (526 u.s. 137 ). before the trial, a daubert hearing will take place before the judge (without the jury). the trial court judge must consider evidence presented to determine whether an expert's "testimony rests on a reliable foundation and is relevant to the task at hand." (daubert, 509 u.s. at 597). the daubert hearing considers 4 questions about the testimony the prospective expert proposes: whether a "theory or technique . . . can be (and has been) tested" whether it "has been subjected to peer review and publication". whether, in respect to a particular technique, there is a high "known or potential rate of error" whether there are "standards controlling the technique's operation". some state courts still use the frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. daubert expressly rejected the earlier federal rule's incorporation of the frye test. (daubert, 509 u.s. at 593–594) expert testimony that would have passed the frye test is now excluded under the more stringent requirements of federal rules of evidence as construed by daubert. in view of daubert and kuhmo, the pre trial preparation of expert witnesses is critical. a problem with daubert is that the presiding judge may admit testimony which derives from highly contested data. the judge may expand the limits contained in the "school of thought" precedent. papers that are self-published may be admitted as the basis for expert testimony. non-peer reviewed journals may also be admitted in similar fashion. the only criterion is the opinion of a single judge who, in all likelihood, has no relevant scientific or medical training. many states also require that a certificate of merit before a malpractice lawsuit be filed which requires a report from a medical physician that the physician accused of negligence breached the standard of care and caused injury to the patient. damages the plaintiff's damages may include compensatory and, in some states and under qualifying circumstances, punitive damages. compensatory damages are both economic and non-economic. economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. these damages may be assessed for past and future losses. non-economic damages are assessed for the injury itself: physical and psychological harm, such as