Medical Malpractice and Tort Reform

Kristen Addington

According to research conducted by a team at Johns Hopkins University School of Medicine about 10% of deaths per year in the United States are caused by medical errors (Sternberg, 2016). This makes medical errors the third leading cause of death in the United States, heart disease being the first, and cancer the second (Sternberg, 2016). The medical errors for this study were defined as: “lapses in judgment, skill or coordination of care; mistaken diagnoses; system failures that lead to patient deaths or the failure to rescue dying patients; and preventable complications of care” (Sternberg, 2016). 10% is a decent percentage that should not be ignored. Tort reform in the area of medical malpractice has many arguments for it and against it. Many think the tort system causes an undue financial burden on the medical system, others think that those harmed by medical errors deserve compensation and perhaps the medical system should be looked at.

Medical Malpractice Proof

Negligence is defined as the breach of duty that all persons should act reasonable and with a reasonable amount of care with others (Lau & Johnson, 2014). Medical malpractice is a category of the negligence tort in which medical professionals commit negligence (Lau & Johnson, 2014). Therefore, medical malpractice is a specific type of negligence. The following must happened in order to make a claim of medical malpractice: the duty owed by the defendant to the plaintiff must be established, proof that this duty was breached must be shown, proof the defendant’s actions caused this breach and lastly the damages sustained by the plaintiff must be shown (Lau & Johnson, 2014). Medical professionals have a duty to perform medical care to their patients. If an error is made during their medical care that causes injury or death to a patient, their duty has been breach. Proof of this error and that it was the doctor’s responsibility must be shown. The injury or death must be explained as a result of the doctor’s error.

Medical Malpractice Defenses

Defenses for any type of negligence are: assumption of risk, contributory and comparative negligence and the Good Samaritan Law (Lau & Johnson, 2014). Assumption of risk notes that the plaintiff knowingly assumed risks in the duty that is being performed (Lau & Johnson, 2014). Comparative and contributory negligence means the plaintiff was at least partially responsible the negligence of duty (Lau & Johnson, 2014). The Good Samaritan Law covers those who are trying to help others (Lau & Johnson, 2014).

Tort Reform for Medical Malpractice

From the research I conducted, tort reform is less of the issue and medical reform is where the focus should be. According to the article by Chad Terhune, the cap of $250,000 in California is not relation to inflation and should be closer to $1 million (2016). It also seems the errors that are happening are not tracked nor is much being done to fix the issue at hand (Sternberg, 2016).

Conclusion

Medical malpractice effects hundreds of thousands of people a year. Tort reform in way of limits and making it more difficult to make a claim do not need to happen. Instead the effort needs to be put into reforming medical care and practices.

References

Doroshow, J. (2009, Nov. 9). Medical malpractice tort reform-we are already suffering and don’t need more. Retrieved from http://www.huffingtonpost.com/joanne-doroshow/medical-malpractice-tort_b_350573.html

Word Press. Tort Reform: The loss of the civil justice system. Retrieved from https://kourtneyplmr14.wordpress.com/colin-gourley/

Kenney, K. (2009, Aug. 9). Fixing health care reform requires tort reform. Retrieved from http://www.npr.org/sections/money/2009/08/fixing_health_care_requires_to.html

Lau, T. & Johnson, L. (2014). The legal and ethical environment of business. Washington, DC: Flat World Knowledge Inc.

Olsen, S. (2003, January 27). Statement of Scott Olsen regarding his son Steven’s medical malpractice story. Consumer Watchdog. Retrieved from

Statement of Scott Olsen regarding his son Steven’s Medical Malpratice Story – January 2003

Sternberg, S. (2016, May 3). Medical errors are third leading cause of death in the U.S. US News. Retrieved from https://www.usnews.com/news/articles/2016-05-03/medical-errors-are-third-leading-cause-of-death-in-the-us

Terhune, C. (2016, December 30). Top Republicans say there’s a medical malpractice crisis. Experts say there isn’t. The Washington Post. Retrieved from https://www.washingtonpost.com/news/to-your-health/wp/2016/12/30/top-republicans-say-theres-a-medical-malpractice-crisis-experts-say-there-isnt/?utm_term=.9fbd69c92a86