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. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice.

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 44,000-98,000 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. 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. 

The medical malpractice claim

The parties

The plaintiff the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the 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.

Elements of the case

A plaintiff must establish all five elements of the tort of negligence for a successful medical malpractice claim.

1. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.

2. A duty was breached: the provider failed to conform to the relevant standard care.

3. The breach caused an injury: The breach of duty was a direct cause and the proximate cause of the injury.

4. 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.

4. 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.

The trial

Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. 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.