Question

In a lawsuit happy society, everyone is to blame. But are they? Consider the case where a patient does not follow doctor's orders for wound care (i.e., difficult to prove) and acquires a post-operative infection that requires another medical procedure. What is the burden of proof needed for the malpractice lawsuit to go forward? Who could be named in the lawsuit? Provide rationale for why malpractice reform should be passed and what that reform would consist of (i.e., damage award limits, pre-judicial validation, etc.).

Answer 1

Medical malpractice is the breach of the duty of care by a medical provider. Medical negligence applies when a medical provider makes a “mistake” in treating patient and that mistake results in harm to the patient.Malpractice lawsuits means lawsuit alleging medical negligence.

A medical negligence act also need to be proved.In order to establish negligence, you or lawyer must be able to prove four “elements”: a duty, a breach of that duty, causation and damages. Example misdiagnosis of a condition or delayed treatment which could have caused significant loss to patient in terms of suffering ,prolonged hospitalized ,loss of money.The patient must show that the injury resulted in disability, financial burden , unusual pain, suffering and hardship, or significant past and future medical bills to pursue a medical malpractice claim,.the victim must prove that the doctor was negligent since he/she failed to do the same level of care that another doctor would have done in a similar situation.

The health care provider provides no burden of proof.Medical malpractice cases are very expensive also.In most cases it is difficult to prove that doctor was at fault. This is due to following factors

• complexity of evidence
• no witness - It is hard to find a health professional  who is willing to publicly speak against another professional
• immense cost of litigation
• linking injury to medical care provider mistake

The medical malpractice system remains dysfunctional for doctors and patients,

Medical malpractice reform, also known as tort reform, includes strategies to limit medical malpractice costs, deter medical errors and ensure that patients who are injured by medical negligence are fairly compensated. An example is the Medical Injury Compensation Reform Act (MICRA) passed in California in 1975.

The advantages of tort reform are

• It limits the punitive costs of civil liability. ...
• It maintains the ability to file a lawsuit. ...
• It allows juries to focus on the case instead of the reward. ...
• It could make it easier to pay judgments. ...
• It offers different methods of resolution. ...
• It limits attorney fees.

Damages caps are laws that limit the amount of non-economic damages that may be awarded for a case.Guidelines should be provided for both real and punitive damages that are federally mandated. Some kind of cap on punitive awards seems appropriate.