There are two types of offenses that an individual (i.e. a defendant) may be charged with. The first one is a civil case and the other one is a criminal case. Civil cases are charges that are based on allegations that an individual or an organization (i.e. corporation or a government-related entity) has failed to fulfill his legal duty leading to damages or lost opportunities. Criminal cases, on the other hand, are where an individual is charged with an indictment for serious forms of crimes and felonies (e.g. murder, homicide, among others), or cases that involve misinformation (e.g. misdemeanor, physical injury, among others). Between the two, medical malpractice falls under the civil classification of cases. In general, both in the United States and in the Europe, civil cases are considered as less severe and serious types of crime, from a legal perspective that is.
Medical malpractice is a form of civil case that is charged to individuals who have failed to abide by his respective state’s professional negligence act (the term used may be different between countries) either by action or omission. This was the way how the authors in an article published in The American Journal of Gastroenterology and the NYU Law Review operationally defined medical malpractice.
As its name implies, this type of malpractice applies to medical and healthcare professionals. According to Sage et al. (2005), while medical malpractice may, in general, pertain to the type of liability that is often charged against physicians, it is important to note that non-physicians may also be charged with the liability. Examples would be nurses, medical technologists, radiologic technicians, and therapists.
In a study published in the New England Journal of Medicine in 2006, the authors suggested that for medical malpractice to be ruled in as the cause of a negative incident in medical or health care practice, the court or the investigating body in charge must be able to find clear evidence in good faith that there was an action or omission in relation to the generally accepted standard of practice industry-wide that led to the injury, harm, or death of a patient . Being a civil case, settlement actions involving financial compensation are generally allowed both in the United States and the Europe.
Ronen conducted an empirical study on the impact of tort reforms on medical malpractice settlement payments in 2007 and in his study, he was able to find out that often, cases are settled even before they reach the court for trial, as a result of a settlement agreement forged between the two parties (i.e. defendant—the patient, and plaintiff—which often is the medical practitioner) involving financial compensation . This was the same finding that another study that made use of information coming from the National Practitioner Data Bank about insurance and other forms of financial payment settlements for cases caused by medical malpractice claims . This is where the purpose of insurance policies that provide coverage for cases of medical malpractice comes in.
Insurance packages covering the costs of cases like medical malpractice fall under a larger category of insurances called professional liability insurances. According to Kahn & Tahouni (2009), Individuals such as doctors, engineers, those who work in the finance and accounting field, healthcare practitioners, and basically anyone who may be held liable by their clients (and their clients’ stakeholders) for providing their service or counsel are the ones who typically apply for this type of insurance. In the case of physicians and those working in the medical and allied medical field for example, it would indeed be a plus if they have a certain financial protection against patient claims that they have been injured as a result of a medical or healthcare-related service or counsel. After all, being charged with either a civil or a criminal case requires an individual to face a certain set of legal processes which include but may not be limited to facing depositions, answering questions, and even facing an official trial in court in case the parties involved fail to reach a settlement agreement prior to the deadline the court has given them.
According to Sonny (2008), “medical malpractice law in the United States is derived from the English common law, and was developed by rulings in various state courts; medical malpractice suits are a relatively common occurrence in the United States; the legal system is designed to encourage extensive discovery and negotiations between adversarial parties with the goal of resolving the dispute without going to jury trial”.
In a peer-reviewed academic journal published in The Lancet in 2006, the authors reviewed the medical liability system, including in part the medical malpractice insurance system in Australia, the United Kingdom (a part and therefore a representative of Europe), and the USA. According to the authors, the total costs of (i.e. that may be attributed to) the medical liability system (including the medical malpractice insurance system) only accounts for a small percentage of the total health spending in Australia, the United Kingdom, and the U.S.A. . This could mean that the number of medical malpractice-related lawsuits in these three countries, collectively, are not that high after all; this correlation can be realized when one considers that medical malpractice insurance policies would only be activated when an individual (i.e. a patient) submits a medical malpractice claim to a court via his lawyer as a result of an injury, harm, or death (in which case, the dead patient’s family members would be the ones that would handle the processing of the charges).
This was the theory that different authors of researches about medical malpractice in general and medical malpractice insurance claims have supported . A lower percentage of medical liability costs (which includes insurance-related costs) as a composition of the total healthcare budget could mean that the number of medical malpractice insurance claims have been at low levels because otherwise, the percentage of such costs in the healthcare budget would be higher. This shows that medical malpractice insurance claims (and therefore medical malpractice occurrence rates) in the U.S. and Europe are not that high after all.
References
Baker, T. (2011). The Medical Malpractice Myth.
Black, B., Silver, C., Hyman, D., & Sage, W. (2005). Stability, not crisis: Medical Malpractice Claim Outcomes in Texas 1988-2002. Journal of Empirical Legal Studies.
Chandra, A., Nundy, S., & Seabury, S. (2005). The Growth of Physician Medical Malpractice Payments: Evidence from the National Practitioner Data Bank. Health Tracking.
Kahn, J., & Tahouni, M. (2009). Professional Liability Insurance. Emergency Medicine Clinics of North America.
Kessler, P., Summerton, N., & Graham, J. (2006). Effects of the Medical Liability System in Australia, the UK, and the USA. The Lancet.
Ronen, A. (2007). An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Settlement Payments. Chicago Journals.
Sage, W., Studdert, D., Mello, M., DesRoches, C., Peugh, J., Zapert, K., et al. (2005). Defensive Medicine Among High Risk Specialist Physicians in a Volatile Malpractice Environment. The Journal of the American Medical Association.
Sasao, S., Hiyama, T., Tanaka, S., Mukai, S., Yoshihara, M., & Chayama, K. (2006). Medical Malpractice Litigation in Gastroenterological Practice in Japan: a 22 year Review of Civil Court Cases. The American Journal of Gastroenterology.
Sharkey, C. (2005). Unintended Consequences of Medical Malpractice Damages Caps. NYU Law Review.
Sonny, B. (2009). An Introduction to Medical Malpractice in the United States. Clin Orthop Relat Res.
Sutddert, D., Mello, M., Phil, M., gawande, A., Gandhi, T., Kachalia, A., et al. (2006). Claims, Errors, and Compensation Payments in medical Malpractice Litigation. The New England Journal of Medicine.
