Medical malpractice is generally associated with doctors making mistakes when treating their patients. However, the legal scope of medical malpractice includes any:
- Treatment;
- Lack of treatment; and/or
- Other departure from the accepted standards of medical care, health care, or safety on the part of a healthcare provider which causes harm to a patient.
Medical malpractice liability refers to who should be held legally responsible for the patient’s injuries. This is generally the party that breached their duty of care, and was the actual cause of the patient’s injuries. However, in some cases, it can be difficult to determine exactly who the liable parties are.
Depending on the specific facts of each medical malpractice case, it may be possible to hold the following parties liable for medical malpractice injuries and losses:
- Hospitals: Health care organizations can be held liable for errors in patient treatment. An example of this would be emergency room negligence, or when the patient receives the wrong type of treatment for their injury or sickness;
- Physicians and Surgeons: According to the legal principles of vicarious liability, it is sometimes possible to hold individual physicians and surgeons responsible for injuries, in addition to the hospital or health care provider who employs the doctor or surgeon. However, this may depend on individual decisions made by the healthcare professional;
- Nurses and Other Staff: Administrative errors can lead to some injuries or economic losses. This is especially true if there is a significant oversight or miscommunication in terms of vital patient information, such as their allergies or pre existing conditions; and
- Pharmacies and Pharmacists: Prescribing the incorrect type of drugs, or the incorrect dosage of medicines, can lead to injury. Additionally, giving a patient the wrong set of instructions for their prescription can result in serious injury or death.
In addition, it is also possible for medical malpractice to result from incorrect advice being given to a patient, meaning not just negligent treatment could be considered medical malpractice. An example of this would be if the patient receives the wrong follow-up instructions from a health care practitioner or home nurse.
What Is Medical Malpractice Insurance?
If you are a practicing medical professional, you will need a considerably strong liability insurance policy. Medical malpractice insurance is what covers doctors and other medical professionals for liability associated with their treatment of patients. The costs of defending a medical malpractice lawsuit, as well as the amount of money that is generally awarded in medical malpractice lawsuits, can be financially detrimental to any business or person.
There are several factors that a medical professional should consider when choosing a malpractice insurance policy for themselves. Some examples of such factors include:
- The net worth of the business as a whole;
- The number of employees that are employed by the business;
- The net worth of the medical professional who is purchasing the medical malpractice insurance policy;
- Specific state laws associated with medical malpractice lawsuits, such as caps on liability;
- The experience and the medical specialty of the medical professional being covered by the insurance policy;
- The cost of insurance premiums in relation to the coverage provided by the policy; and
- The existence of risk management and prevention programs, which could reduce the need for a considerably high insurance policy.
What Does Medical Malpractice Insurance Cover? What Does It Not Cover?
Medical malpractice insurance generally covers negligence claims, as well as other claims that assert that the medical professional’s conduct breached their duty of care. Malpractice insurance coverage often covers the cost of an attorney and other legal fees, if a medical malpractice claim is made against the insured medical professional.
It is important to note that medical malpractice insurance generally only covers claims stating that the professional’s medical conduct was subpar. Claims associated with other matters, such as sexual abuse claims, employee disputes, and/or accusations of criminal behavior, are rarely covered by medical malpractice insurance.
Whether doctors or other medical professionals are legally required to purchase medical malpractice insurance is largely decided on a state by state basis. Although all states are capable of passing such laws, most states have no requirements to purchase malpractice insurance. However, because lawsuits can be extremely expensive, it would generally be advised for any medical professional to purchase such insurance. Additionally, most employers will either require that their employees be insured, or will cover the employees with their existing insurance coverage.
Why Is Medical Malpractice Insurance So Expensive?
Many question why medical malpractice insurance is considerably expensive, especially when tort reform has capped the amount of money that may be awarded to plaintiffs in medical malpractice cases.
Simply put, spikes in the price of malpractice insurance in the 1970’s, 1980’s and early 2000’s drove political demands that the amount of money that is awarded to plaintiffs of medical malpractice cases be capped. This was intended to ensure that medical professionals would not be driven out of their fields by rising litigation costs. However, such caps were often deemed unconstitutional by state courts.
Something worth noting is that during the decade that most of the litigation award caps were put in place, the price of malpractice insurance continued to rise despite the fact that the number of personal injury attorneys who were filing lawsuits for medical malpractice was decreasing. As such, the debate over the cost of malpractice insurance and its impact on the medical field continues at both the state and the federal level.
What Else Should I Know About Medical Malpractice Liability In General?
Another concern that is commonly associated with medical malpractice liability is that more than one person or party can be responsible for the injuries that the plaintiff is experiencing. In addition to actual procedures, medical treatment involves several different stages, such as:
- Patient intake;
- Diagnosis;
- Pre-treatment consultation; and
- Follow-up.
Throughout this process, various errors can occur.
An example of this would be how a nurse may receive improper instructions regarding the dosage of a specific anesthesia. The question of liability then becomes whether the nurse should have recognized the incorrect dosage, and have taken steps to correct the dosage. This would depend on many different factors, such as the nurse’s skill level and the nature of the instructions that the nurse received.
Most states have complicated mechanisms in place that are used to determine how to address medical malpractice liability between different parties. This is known as the division of liability in a personal injury claim, and results in the liable parties paying certain percentages of the damages award. Once again, this is a considerably complicated determination that depends on a number of factors, and is different from state to state. Generally speaking, it requires the expertise of an attorney, and may also require the testimony of medical experts. Different types of evidence will need to be examined, such as:
- Hospital reports;
- Medical receipts; and
- Doctor’s notes.
Do I Need An Attorney For Medical Malpractice Insurance?
If you are a medical professional considering medical malpractice insurance, you should consult with an experienced and local personal injury lawyer. An attorney will be best suited to helping you understand your state’s specific laws regarding the matter, and can review policies in order to help you determine which would best suit your needs. Additionally, your attorney will also be able to represent you in court, should any legal issues present themselves.
