Medical malpractice occurs when a patient suffers harm, injury, loss or damage by a doctor, nurse, dentist, pharmacist, therapist or any other medical care provider who fails to competently perform his or her medical duties by providing improper, unskilled, or negligent treatment to a patient. Medical negligence can include a failure to diagnose, improper treatment, and failure to warn a patient of known risks. 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.

Medical Malpractice Law is highly regulated

Medical malpractice law is highly regulated by a complex body of rules, which vary from state to state. These rules include how soon a medical malpractice claim must be filed; whether the patient must submit the claim to a malpractice review panel before filing the claim in court; whether notice of the malpractice claim must be given to the doctor before filing; what qualifications are required to be deemed an expert medical witness for the purposes of testifying; and what statutory caps exist on the amount of compensation that can be awarded.

Liability

Professional negligence is the predominant theory of liability concerning allegations of medical malpractice, making this type of litigation part of Tort Law. A person who alleges negligent medical malpractice must prove all four elements of the tort of negligence:
1. A doctor-patient relationship existed, so a duty of care was owed by the physician
2. The physician violated the applicable standard of care, showing proof of negligence, generally by expert testimony or obvious errors.
3. The doctor’s negligence caused the injury.
4. The person suffered a compensable injury, meaning that the injury led to specific damages.
The burden of proving these elements is on the plaintiff, the one who brings the claim. The healthcare provider is the defendant.

Physicians have complained about the large number of malpractice suits, arguing that these claims have driven up the cost of healthcare, and have urged legal reforms to curb large damage awards. As a result many states have passed tort reform measures, which limit the amount of damages a plaintiff can recover for non-economic losses assessed for the injury itself, such as pain and suffering, loss of vision or loss of a limb. There are also restrictions on the amount of fees attorneys may recover for their legal services. Tort attorneys claim that medical malpractice awards account for a very small percentage of national healthcare expenditures. They also argue that tort reform laws protect insurance companies and physicians, and not the patient; therefore medical malpractice suits are an effective way of compensating victims of negligence and of policing the medical profession.