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S Y M P O S I U M : C L I N I C A L R I S K A N D J U D I C I A L R E A S O N I N G

An Introduction to Medical Malpractice in the United States

B. Sonny Bal MD, MBA

Published online: 26 November 2008

� The Association of Bone and Joint Surgeons 2008

Abstract Medical malpractice law in the United States is

derived from English common law, and was developed by

rulings in various state courts. Medical malpractice law-

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. The injured patient must show that the physician

acted negligently in rendering care, and that such negli-

gence resulted in injury. To do so, four legal elements must

be proven: (1) a professional duty owed to the patient; (2)

breach of such duty; (3) injury caused by the breach; and

(4) resulting damages. Money damages, if awarded, typi-

cally take into account both actual economic loss and

noneconomic loss, such as pain and suffering.

Introduction

The concept that every person who enters into a learned

profession undertakes to bring to the exercise of a rea-

sonable degree of care and skill dates back to the laws of

ancient Rome and England. Writings on medical respon-

sibility can be traced back to 2030 BC when the Code of

Hammurabi provided that ‘‘If the doctor has treated a

gentlemen with a lancet of bronze and has caused the

gentleman to die, or has opened an abscess of the eye for a

gentleman with a bronze lancet, and has caused the loss of

the gentleman’s eye, one shall cut off his hands [18].’’

Under Roman law, medical malpractice was a recog-

nized wrong. Around 1200 AD, Roman law was expanded

and introduced to continental Europe. After the Norman

conquest of 1066, English common law was developed,

and during the reign of Richard Coeur de Lion at the close

of the 12th century, records were kept in the Court of

Common Law and the Plea Rolls. These records provide an

unbroken line of medical malpractice decisions, all the way

to modern times. One early medical malpractice case from

England, for example, held that both a servant and his

master could sue for damages against a doctor who had

treated the servant and made him more ill by employing

‘‘unwholesome medicine [4].’’ In 1532, during the reign of

Charles V, a law was passed that required the opinion of

medical men to be taken formally in every case of violent

death; this was the precursor to requiring expert testimony

from a member of the profession in medical negligence

claims, to establish the standard of care.

In the United States, medical malpractice suits first

appeared with regularity beginning in the 1800s [3].

However, before the 1960s, legal claims for medical mal-

practice were rare, and had little impact on the practice of

medicine [21]. Since the 1960s the frequency of medical

malpractice claims has increased; and today, lawsuits filed

by aggrieved patients alleging malpractice by a physician

are relatively common in the United States. One survey of

specialty arthroplasty surgeons reported that more than

70% of respondents had been sued at least once for medical

malpractice during their career [23].

Since medical malpractice litigation is a pervasive

phenomenon, it is likely surgeons will encounter it at some

The author certifies that he or she has no commercial associations (eg,

consultancies, stock ownership, equity interest, patent/licensing

arrangements, etc) that might pose a conflict of interest in connection

with the submitted article.

B. S. Bal (&) Department of Orthopaedic Surgery, University of Missouri-

Columbia, MC213, DC053.00, One Hospital Drive, Columbia,

MO 65212, USA

e-mail: [email protected]

123

Clin Orthop Relat Res (2009) 467:339–347

DOI 10.1007/s11999-008-0636-2

point in their career. Once a lawsuit is filed, the defendant

physician must deal with unfamiliar legal territory, where

the goals, professional conduct, and procedures followed

by the parties to the litigation are different from the prac-

tice of medicine. The goal of this article is to provide

orthopaedic surgeons an introduction to the basic concepts

of medical malpractice law, including the language, court

structure, and tribunals that govern medical malpractice

litigation in the United States.

Medical Malpractice Law in the United States

In the United States, medical malpractice law has tradi-

tionally been under the authority of the individual states

and not the federal government, in contrast to many other

countries. To win monetary compensation for injury related

to medical negligence, a patient needs to prove that sub-

standard medical care resulted in an injury. The allegation

of medical negligence must be filed in a timely manner;

this legally prescribed period is called the ‘‘statute of

limitation’’ and varies from state to state. Once the injured

person has established that negligence led to injury, the

court calculates the monetary damages that will be paid in

compensation. Damages take into account both actual

economic loss such as lost income and cost of future

medical care, as well as noneconomic losses, such as pain

and suffering. Physicians practicing in the United States

generally carry medical malpractice insurance to protect

themselves in case of medical negligence and unintentional

injury. In some instances, such insurance is required as a

condition of hospital privileges, or employment with a

medical group.

Medical malpractice is defined as any act or omission by

a physician during treatment of a patient that deviates from

accepted norms of practice in the medical community and

causes an injury to the patient. Medical malpractice is a

specific subset of tort law that deals with professional

negligence. ‘‘Tort’’ is the Norman word for ‘‘wrong,’’ and

tort law is a body of law that creates and provides remedies

for civil wrongs that are distinct from contractual duties or

criminal wrongs [24]. ‘‘Negligence’’ is generally defined as

conduct that falls short of a standard; the most commonly

used standard in tort law is that of a so-called ‘‘reasonable

person.’’ The reasonable person standard is a legal fiction,

created so the law can have a reference standard of rea-

soned conduct that a person in similar circumstances would

do, or not do, in order to protect another person from a

foreseeable risk of harm.

Current medical malpractice law has its origins in 19th

century English common law [22]. English common law

refers to the legal system of England and Wales, and forms

the basis of jurisprudence in the United States, and in many

other Commonwealth countries to which it was exported

during the time of the British Empire. Common law refers

to law and legal systems that are developed through deci-

sions of courts and judges, as opposed to laws developed

exclusively through legislative statutes or executive deci-

sions. In the United States, medical malpractice law is

under the authority of the individual states; the framework

and rules that govern it have been established through

decisions of lawsuits filed in state courts. Thus, state law

governing medical malpractice can vary across different

jurisdictions in the United States, although the principles

are similar. In addition, during the last 30 years, statutes

passed by states’ legislatures have further influenced the

governing principles of medical malpractice law. Thus

medical malpractice law in the United States is based on

common law, modified by state legislative actions that vary

from state to state.

One exception to medical liability can arise in the

context of those who volunteer assistance to others who are

injured or ill; this exception is embodied in ‘‘Good

Samaritan’’ laws that address bystanders’ fear of being

sued or prosecuted for unintentional injury or wrongful

death, In the United States, Good Samaritan laws vary from

jurisdiction to jurisdiction and specify who is protected

from liability and the circumstances pertaining to such

protection. In general, Good Samaritan statutes do not

require any person to give aid to a victim, although a

handful of states, such as Vermont and Minnesota, specify

a duty to provide reasonable assistance to an injured person

at the scene of an emergency. This duty may be satisfied by

calling 911 for assistance, and the violation of such a duty

is usually a petty misdemeanor.

Although they are not uniform in their application, Good

Samaritan provisions have some general principles in

common. The principle of imminent peril may affect the

scope of such laws; thus, if a bystander elects to rescue a

victim when there is no imminent peril and causes injury,

then a court may hold the actions of the rescuer as reckless

and unnecessary. Once the bystander begins rendering aid,

he must not leave the scene unless another rescuer takes

over, or unless it is necessary to summon needed medical

attention, or if continuance of the aid is unsafe. Consent in

emergency situations is implied if the patient is unable to

give consent; courts are forgiving in this regard under the

legal doctrine that ‘‘peril invites rescue.’’

To summarize, under appropriate circumstances, and in

jurisdictions where they apply, Good Samaritan laws can

immunize the responder from legal liability for death,

disfigurement, or disability of the victim as long as the

responder acted in good faith, according to his level of

training, and in a rational manner. In some jurisdictions,

Good Samaritan laws protect only those who have com-

pleted basic first aid training and are certified by a health

340 Bal Clinical Orthopaedics and Related Research

123

organization, and provided they limit care to the scope of

their training. In such jurisdictions, a person who lacks

such training and elects to perform first aid incorrectly can

be held liable for errors. In other jurisdictions, however,

any rescuer is exempt from legal liability as long as the

rescuer acted rationally.

The Court System in the United States

Although the names given to the different judicial tribunals

can vary, the structure and hierarchy of the courts is similar

among the states. All states in the United States have trial

courts where civil disputes are filed and litigated; and there

is usually a system of appeals courts, with final judicial

authority resting in the state supreme court. The place

where the case is filed is guided by the residence of the

parties involved and the location of the alleged misconduct;

this place is also referred to as venue. If a case is filed in the

wrong court, it can be dismissed for lack of venue.

Lawsuits alleging medical malpractice are generally

filed in a state trial court. Such trial courts are said to have

jurisdiction over medical malpractice cases, which is the

legal authority to hear and decide the case. Legal rules

guide venue and jurisdiction in each state. Some towns

may be located in two judicial districts, thereby giving the

aggrieved patient an option to file suit in more than one

trial court. If the malpractice claim involves the federal

government acting through a federally funded clinic or a

Veteran’s Administration facility, then the action is filed in

a federal district court. Each state has at least one such

federal district court. Federal courts may also be appro-

priate for filing malpractice claims where a complete

diversity of state citizenship exists, i.e., if the parties to the

litigation are from different states, or if a federal question is

invoked, such as violation of a fundamental constitutional

right during the allegedly negligent conduct.

In the United States, the right to a jury trial is regarded as

a fundamental constitutional right. A jury trial is a legal

proceeding where a group of individuals chosen from the

public is asked to consider the evidence presented during

the case and make a decision. The choice of jurors is guided

by court rules and with the participation of lawyers from

both sides. Demographic information about the jurors is

known to both parties, each of whom can usually strike a

limited number of jurors to assure impartiality of the jury

panel. In contrast to a jury trial, a bench trial is one in which

a judge or a panel of judges makes the ultimate decision. In

the United States, a physician can expect a jury trial in

nearly all cases of medical malpractice, assuming the case is

not disposed of prior to trial. (A jury trial is not the same

thing as a grand jury; the latter is used for criminal indict-

ments and does not apply to medical malpractice cases.)

Under limited circumstances, a medical malpractice

case may be filed or moved to a federal court. This can

occur if the underlying case invokes a federal question or

federal constitutional issue or if the parties live in different

states. The federal equivalent of state trial courts consists

of a system of 94 United States district courts; at least one

is located in each state. Like state courts, U.S. district

courts have a judge and a jury panel that hear the case.

While the rules that apply to legal procedures in U.S.

district courts are uniquely federal, they are similar to state

rules of legal procedure. The substantive law applied by

federal courts to resolve legal disputes, ie, statutory law or

legal precedent, is derived from the state in which the

district court is located. Thus, if a medical malpractice case

is tried in federal court, state malpractice law still applies,

with federal procedural rules of jurisprudence. Procedural

rules have to do with legal housekeeping functions that

guide the litigation process.

The Legal System of the United States

The system of law governing the resolution of civil dis-

putes between parties in the United States is referred to as

the adversarial system, where respective advocates for

each side in a dispute skillfully present arguments before

an impartial party, such as a jury or judge [19]. The

adversarial system is used in common law countries to

resolve disputes related to negligent conduct, whether

medical or otherwise. In contrast, the inquisitorial system

is usually found in continental European countries based

on the civil law system that is derived from Roman law or

the Napoleonic code; in this system, judges independently

investigate the facts of the case and decide the outcome.

The Napoleonic code refers to the French civil code that

was established under Napoleon Bonaparte, and drafted

by eminent jurists in 1804. This Code stressed clearly

written and easily accessible law, and was a major his-

torical influence in establishing and promoting the idea of

‘‘the rule of law.’’ The Code itself was derived from

earlier French laws and Roman law, and reflected a fun-

damental advancement that changed the civil law legal

system of France, and influenced that of other nations as

well.

The aggrieved patient who initiates the lawsuit before a

court is called the plaintiff or complainant. By filing a

lawsuit, the plaintiff seeks a legal remedy from the court. If

the plaintiff is successful, the court will enter judgment for

the plaintiff and issue a court order for damages. The party

against whom the complaint is directed is the defendant; in

the case of medical malpractice this party is the physician,

medical laboratory, hospital, or professional organization

to which the physician belongs. In litigation, cases are

Volume 467, Number 2, February 2009 U.S. Medical Malpractice 341

123

identified by citing the plaintiff first; thus a lawsuit is cited

as ‘‘Plaintiff v. Defendant.’’

A medical malpractice lawsuit in United States is initi-

ated by filing a summons, claim form, or complaint; these

legal documents are called the pleadings. Pleadings set

forth the alleged wrongs committed by the defendant

physician with a demand for relief. In some jurisdictions,

the legal action is initiated by service of legal process by

physical delivery of documents on the defendant by a

process server; these documents are then filed with the

court with an affidavit verifying that they have been given

to the defendant doctor according to certain rules of legal

procedure.

Legal Elements of Medical Malpractice

In the United States, the patient alleging medical mal-

practice must generally prove four elements or legal

requirements to make out a successful claim of medical

malpractice [6]. These elements include: (1) the existence

of a legal duty on the part of the doctor to provide care or

treatment to the patient; (2) a breach of this duty by a

failure of the treating doctor to adhere to the standards of

the profession; (3) a causal relationship between such

breach of duty and injury to the patient; and (4) the exis-

tence of damages that flow from the injury such that the

legal system can provide redress.

The first element is that a legal duty existed toward the

patient; this duty comes into play whenever a professional

relationship is established between the patient and health

care provider. The general idea of a legal duty is that in

civilized society, each person owes a duty of reasonable

care to others. Extending this concept to the professional

setting, where a doctor provides service to a patient, the

doctor is said to owe a duty of reasonable professional care

to the patient. In practical terms, this is the easiest element

for the patient to establish, since such a duty is essentially

assumed whenever a physician undertakes the care of a

patient. A duty does not exist where no relationship is

established between the doctor and patient; but when a

relationship is established, such as covering patients for a

colleague, covering a clinic where indigent patients are

treated, or providing emergency services to an accident

victim by the roadside, a duty of reasonable care follows.

In some situations, for policy reasons related to promoting

medical care for indigent patients, or encouraging inter-

vention by medical bystanders in case of an accident, the

law may limit the liability of the treating physician, even

though a reasonable duty of care was established. An

exception to the duty of care is when the physician sees the

patient as a nonprofessional, such as outside the hospital or

clinic, or in some social setting. In such cases, no doctor-

physician relationship is established, and there is no duty of

reasonable medical care owed.

To show that a breach of professional duty occurred, the

patient must invoke the concept of standard of care. While

the precise definition of ‘‘standard of care’’ can differ

among jurisdictions and the concept can prove elusive in its

application, the standard of care generally refers to that

care which a reasonable, similarly situated professional

would have provided to the patient. To establish breach of

a standard of professional care, expert witness testimony

becomes essential since a jury of lay persons cannot

understand the nuances of medical care. Some breaches of

the standard of care are so egregious that expert testimony

is not needed; thus an operation on the wrong limb is an

obvious breach of duty that speaks for itself. This concept

is captured in the legal term called res ipsa loquitur (Latin

for ‘‘the thing itself speaks’’ but more often translated as

‘‘the thing speaks for itself’’); in such cases, the legal

proceeding is abbreviated and the jury can proceed to

determining damages since the breach of duty is plainly

obvious.

A breach of the standard of care in itself, aside from

being a potential quality of care concern for the medical

practitioner or institution, is legally meaningless unless it

causes an injury to the patient. This ‘‘so what?’’ question

frames the third element of medical malpractice, which is

causation. To prove this element, the injured plaintiff must

show a direct relationship between the alleged misconduct

and a subsequent injury. Alternatively, the patient can

show a legally sufficient relationship between the breach of

duty and the injury; this concept is referred to as proximate

causation.

The fourth and final element of medical malpractice

lawsuits is called damages. A medical malpractice claim

generally concludes with a calculation of damages. Since

monetary damages are easy to calculate and administer,

courts hearing medical malpractice cases will determine

money damages to compensate the injured patient. Punitive

damages are very rare in medical malpractice cases, and

are reserved by courts for especially egregious conduct that

society has a particular interest in deterring; examples can

include altering or deliberate destruction of medical

records or sexual misconduct towards a patient. Absent a

showing of damages, a plaintiff cannot maintain a cause of

action for medical negligence. Thus if a fractured tibia was

treated using closed reduction and cast application when

the fracture pattern clearly called for open fixation, it may

constitute negligence if the fracture went on to nonunion or

malunion, requiring multiple operations and increased

expenses. But if the fracture went on to uneventful healing

despite the wrong treatment and the patient pleaded injury

from this treatment but with no showing of actual damages,

there would be nothing for the court to award.

342 Bal Clinical Orthopaedics and Related Research

123

The Process of Trial

Medical malpractice cases rarely reach trial, and this is

generally true of civil litigation in the United States. The

reason is that the legal system is based on adversarial

advocacy by respective lawyers, designed to foster and

promote efficient self-resolution of civil disputes. To that

end, a number of legal tools have been developed, the most

important of which is the process of discovery. Between

the filing of the suit and trial, there is a lengthy and

extensive period of discovery, or information sharing and

factual understanding between parties. The process of

discovery is facilitated by requests for documents, inter-

rogatories, and depositions; these are all components of

extensive pretrial, out-of-court litigation process between

parties that the legal system is designed to encourage.

Documents consist of medical records; a request for med-

ical records is usually the first step undertaken by a

plaintiff’s attorney to review the case. Other documents can

include hospital billing information, clinic notes, and

related papers. Once the case is filed, an interrogatory is a

form submitted by attorneys to the opposing party; the goal

is to gather preliminary and demographic information

about the party. Depositions are formal proceedings in

which a litigant or party to the litigation is questioned by

counsel, under oath, and a record of the proceeding is made

for later use in court. The rationale is that by requiring

disputing parties to exchange facts and underlying infor-

mation, such as respective expert testimony, the parties can

reach mutual understanding and settle the case. Absent

settlement, information gained during discovery is pre-

sented during trial; contrary to popular notions about court

trials, neither party can spring a surprise on the other side

by introducing new and undiscovered facts.

For many physicians, the deposition under oath is the

most vivid encounter with the legal system during a med-

ical malpractice suit. In law, a deposition is a witness

testimony that is given under oath, and recorded for use in

court at a later date. In the United States, a deposition is

part of the discovery process by which litigants gather

information in preparation for trial. Federal Rules of Civil

Procedure and their corresponding state counterparts gov-

ern the taking of testimony by deposition. Typically, the

patient’s attorney will file notice with the attorney

defending the doctor that a deposition is needed. All parties

agree upon a convenient time and place. In many cases, the

place is the doctor’s office, preferred by the defense law-

yers since physicians are comfortable in their offices, and

have books and other reference materials available, in case

they are needed. A deposition begins with a court reporter

administering the same oath or affirmation that the party

being deposed would take if the testimony were to be in

court, before a judge and jury. Then a verbatim

stenographic record of all that is said during the deposition

is taken, just like a recording in court. A written record of

the testimony, or a video record, is then available to all

parties in the litigation.

Depositions are usually attended by attorneys for both

parties and a representative from the insurance company

who has issued malpractice coverage on behalf of the

doctor. Sometimes, the patient can choose to attend the

deposition, although the patient does not direct questions to

the deponent. Direct examination is the questioning of the

deponent by the attorney who ordered the deposition,

namely, the attorney for the patient. After the direct

examination, other attorneys in attendance may cross-

examine the testifying physician. Cross-examination may

be followed by more questions from the first attorney; this

process is called redirect, which may be followed by a

recross, until all parties have exhausted their questions.

During deposition testimony, two kinds of objections

may be raised by lawyers; these apply to either the asser-

tion of a privilege or to the form of the question asked.

Objections related to the admissibility of evidence, and the

applicability of rules of evidence are generally preserved

for trial. Objections to form are usually a signal to the

deponent to be careful in answering the question. The

significance of deposition testimony lies in the fact that it

can be used to impeach or contradict the physician’s later

testimony in open court. Therefore, thorough preparation

for deposition is essential; the physician should set aside

time for meeting and preparing with counsel, and research

the records before delivering testimony. Experienced law-

yers will conduct a mock deposition to ensure physician

comfort and familiarity with the process. Finally, honesty

and truth are essential; the deposition testimony is a per-

manent record issued under oath, and can be used to negate

later, contrary statements offered by the physician.

At trial, the plaintiff’s attorney has the burden of prov-

ing every element of the case by presenting information

gathered during the pretrial discovery. The attorney must

convince the jury that it was more likely than not that the

physician was negligent. Any assertions by the physician’s

lawyer to the contrary are called defenses. Defenses serve

to negate the evidence presented by the aggrieved plaintiff.

The ‘‘more likely than not’’ standard of legal proof required

in medical malpractice litigation is also called the ‘‘pre-

ponderance of evidence’’ standard; it is less demanding

than the ‘‘beyond reasonable doubt’’ standard required to

convict criminal defendants. Practically, ‘‘preponderance

of evidence’’ means that an impartial jury, after hearing

and considering all the information discovered by respec-

tive parties will find a greater than 50% probability that

professional negligence did occur, in order to return a

verdict against the physician. In this role, the jury or judge

are referred to as fact-finders.

Volume 467, Number 2, February 2009 U.S. Medical Malpractice 343

123

The process of how lawyers are selected in medical

malpractice litigation is different for plaintiffs and defen-

dants. In the United States, lawyers for aggrieved patients

are hired by the patient, usually on a contingency-fee basis,

where the lawyer collects money only if a monetary

damage is awarded. This system has been criticized as

encouraging medical malpractice lawsuits, unscrupulous

advocacy on behalf of the patient, and discouraging meri-

torious medical malpractice cases with a low chance of

monetary recovery [5]. However, the vast majority of

medical malpractice claims that are filed do not proceed to

the point of a jury verdict. Contingency fees apply to both

settlements and monetary damages awarded by a court; the

amount taken by the plaintiff’s lawyers can vary from 5%

to 50% of any dollars received, whether from a settlement

or formally awarded by a court after a verdict favoring the

plaintiff. Defense lawyers are appointed on behalf of

physicians by the medical malpractice insurance company;

legal fees are paid by the insurance company even though

the lawyer’s client is the physician being represented.

Physicians named as defendants in medical malpractice

litigation in the United States can also hire personal

counsel at their own expense, for additional guidance,

review, and insight.

Medical malpractice lawsuits are time- and resource-

consuming endeavors, and emotionally charged experi-

ences. Many lawsuits settle out of court, on terms agreed

upon by both parties, with a payment of money by the

physician’s insurance company. Most insurance policies

allow the physician to have input into the settlement

decision, giving the physician the authority to decide

whether to settle, or proceed with litigating the claim.

Some professional liability policies, however, allow the

insurance carrier to settle a claim without consent of the

policyholder, or even over the policyholder’s objection,

and may contain additional restrictions related to settle-

ment of claims. Whether or not a medical malpractice

action is settled or proceeds to court, the investment of

time, money, and resources by the defendant physician, and

the plaintiff’s attorney, is not trivial. The process of legal

discovery and negotiations between parties usually stret-

ches out over years, and during this time, the plaintiff’s

lawyer must fund the proceedings, such as paying court

costs, attorney time and work product, and fees for expert

testimony. Medical negligence lawsuits are complex

undertakings, involving many hours of physician and

attorney time, extensive review of records, interviews with

experts, and research into the medical and legal literature.

Preparation and prosecution of a medical negligence law-

suit can cost more than $100,000; this amount reflects the

financial risk assumed by the plaintiff’s attorney in return

for the probability of settlement or a favorable verdict.

Increasing medical malpractice litigation relates to

increased medical expenditures in the United States, in part

because of increased resource utilization from defensive

practices to avoid claims [20]. The concern has been raised

that physicians may settle cases to avoid the nuisance,

harassment, and financial risk inherent in jury trials [17].

Monetary payments, even if through pretrial settlement, are

usually reported to a national practitioner databank and to

state medical licensing boards and medical societies. While

the goals of such reporting are related to ensuring quality of

care, the advantages of these mechanisms remain unclear

[16]. The role of lawsuits and pretrial settlement in con-

tributing to the large costs of the U.S. healthcare system are

a subject of an intense national debate.

Once damages have been assessed by a court, the losing

party can apply for a new trial, or appeal the judgment to

the next higher level of court; appeals courts exist in every

state and in the federal system for this purpose. In some

jurisdictions, parties can appeal the size of the judgment at

the same court; thus dissatisfied plaintiffs may want more

money, while defendant physicians can appeal for a

reduction in the amount awarded. In practice however, the

legal system of the United States is extremely deferential to

the finality of a jury trial; successful legal appeals usually

concern a specific point of law or procedure that may have

been misapplied during trial. If a jury applied the correct

law, and the trial court followed proper legal procedures,

the outcome of a trial is unlikely to be disturbed on appeal,

even if it appears unfair or incorrect. The practical impli-

cation is that medical malpractice cases are won or lost at

trial; thus physician preparation, participation, involvement

and cooperation with defense counsel are important.

Tort Reform

In response to concerns that there is a crisis in medical

malpractice litigation [2, 11], many states have adopted a

variety of administrative and legislative actions, collec-

tively referred to as ‘‘tort reform’’ measures. These

measures include actions such as ending lawsuits in which

one defendant can be responsible for paying all of the

damages if other defendants lack the resources to pay (joint

and several liability); reducing damage awards by the

amount available to an injured party from collateral sources

(such as workers compensation and health insurance);

limiting contingency fees that a lawyer can claim to cover

fees and expenses; limiting the length of time after an

injury that a lawsuit may be brought to trial, permitting the

award of future damages such as lost wages and health care

costs to be paid in installments instead of one lump sum;

and limiting damages awarded in malpractice lawsuits.

344 Bal Clinical Orthopaedics and Related Research

123

Similar reform efforts have been introduced at the federal

government level as well.

Other proposals have included introduction of a con-

tractual model for medical malpractice liability [9] and

instituting a no-fault medical malpractice liability system

similar to worker’s compensation, or no-fault automobile

insurance [12]. Although state legislatures have generally

rejected both these models, a number of other proposals

have passed with the goal of reducing malpractice fre-

quency, probability, and severity. One study examined

44,913 claims reported to the National Practitioner Data

Bank from 1999 through 2001, using logistic regression to

study associations between payments, physician premiums,

and ten state statutory tort reforms [8]. The authors found

that despite wide variations in malpractice payments

among states, statutory reforms that capped total and

noneconomic damages were associated with lower pay-

ments and premiums. While other studies report mixed

results [1, 10], it is possible major reductions in malprac-

tice payments could be realized if total or noneconomic

damage caps were operating nationally.

Alternatives to the strict tort liability system have been

offered as well. Such alternatives include replacing the trial

and jury system with a less formal process involving pro-

fessional decision makers. The goal of this alternative

dispute resolution scheme is to reduce costs, expedite the

handling of negligence claims, eliminate overly generous

juries, and screen out nonmeritorious claims. Arbitration is

a form of alternative dispute resolution that has been

adopted by many states in the US, but not for resolving

medical malpractice claims. Voluntary binding arbitration

is an alternative to litigation, conducted privately by the

parties before an impartial third party with expertise in the

area. The decision of the arbitrator is generally final,

although unsatisfied parties can seek subsequent judicial

resolution of the dispute. The American Medical Associ-

ation has proposed establishing a state medical board to

discipline physicians and resolve medical malpractice

claims [7]. Under this proposal, which has not been

adopted in any state so far, the board would have authority

to change some legal rules pertaining to medical mal-

practice, limit attorney fees, and use guidelines to promote

consistency in damage awards. Others have proposed

eliminating physician liability entirely and replacing it with

enterprise liability in which the health care organization

where the care is delivered is held responsible for negli-

gence [15]. The goal of enterprise liability is to monitor

quality of care while reducing costs, and expedite the

resolution of malpractice. Some health organizations who

employ physicians already apply some of these concepts

by assuming legal responsibility for their employee-

physicians.

Different states have different regulations for the actual

filing of a lawsuit related to medical negligence; some of

these regulations are the result of incremental tort reform

efforts. Thus, state regulations may limit the choice of

venue, i.e., limit the court in which a plaintiff can file the

lawsuit instead of shopping for an alternative venue with a

history of generous awards for plaintiffs. Another common

regulation is to require an affidavit by a peer-physician

testifying to the merits of the case before it can be filed, and

to limit plaintiff’s discovery of a defendant’s assets until a

trial court has found that the plaintiff is able to present a

credible case. A number of states have passed laws pro-

hibiting the admission of expressions of sympathy or

benevolence following an adverse outcome; such apologies

for medical errors have limited admissibility in civil

actions when used by the plaintiff to show defendant

negligence.

Overview of Other Legal Systems

The large expenditure of national wealth on U.S. healthcare

is the subject of intense scrutiny and reform efforts [8].

According to a report issued by the World Bank, the direct

cost of administering the medical malpractice system in the

United States was $4.86 billion in 1991; this figure reflects

the insurance premiums paid by physicians and hospitals

[13]. A report issued by the US Department of Health and

Human Services estimated the cost of malpractice insur-

ance to doctors alone at $6.3 billion in 2002; with an

additional cost of $60–108 billion related to the practice of

defensive medicine, i.e., costs related to physician behavior

in response to the threat of a lawsuit alleging medical

negligence [14]. While the legal systems for dealing with

medical malpractice claims in other developed nations

parallel those of the United States for the most part, there

are differences that could guide future policy and reform

efforts.

The British medical malpractice system relies on its

courts to adjudicate patient complaints. Most doctors in

England are insured by the National Health Service (NHS)

that handles all the legal and business aspects of medicine.

NHS employee doctors are not personally liable for mal-

practice claims and do not have to buy malpractice

insurance coverage. Funds for the NHS indemnity come

from the government’s general fund. Jury trials are less

common in England, but the legal handling of malpractice

claims is otherwise similar to the United States. Compli-

ance with customary practice is a defense to an allegation

of medical malpractice in England; reasonable care is

defined as practice in accordance with that accepted at the

time as proper by a responsible body of medical opinion.

Volume 467, Number 2, February 2009 U.S. Medical Malpractice 345

123

In France, the medical malpractice system was similar to

that of the United States until 2002; patients could file

medical malpractice suits in court, and either settle or

proceed to trial. Legal rules made it difficult for patients to

prevail in litigation against a doctor. Changes instituted in

2002 introduced an out-of-court, no-fault system in which

patients could bring claims before a regional government-

appointed review board; money to compensate injured

patients comes from a national fund that is funded by

insurance premiums placed on doctors and hospitals or

from general fund revenues.

In Germany, medical malpractice claims are referred to

mediation boards and expert panels set up by the physi-

cians’ guild. Patients can reject the outcome of mediation,

and take their case to court where the system of adjudi-

cating medical malpractice claims is similar to that of the

United States. Sweden, Finland, Denmark, and Norway

also operate out-of-court, no-fault systems for medical

malpractice, designed to compensate patients for injuries

they suffer from avoidable risk and complications related

to medical care. The systems also compensate patients for

injury caused by defective equipment, the misuse of

equipment, incorrect diagnoses, and infection contracted

during treatment.

In Japan, almost half the doctors belong to the Japanese

Medical Association, and are covered for malpractice

claims by a collective insurance pool. Private insurance

coverage is also available, although it is not required by

law. The professional liability program offers an out-of-

court claim review system that is faster and less expensive

than court review, but it is biased in favor of physicians

over patients. The review board’s decisions are generally

binding, but patients can also sue in court. Unlike the

United States, injury or death due to medical error is often

treated as a criminal matter in Japan, with the possibility of

physician arrest and prosecutorial investigation.

The Canadian medical malpractice system is similar to

that of the United States, but fewer claims are filed, and the

incidence of claims related to medical negligence has

declined steadily since 1997. This decline is probably

related to improved patient safety initiatives, and physician

participation in continuing professional development pro-

grams. Most Canadian physicians are insured against

medical malpractice by the Canadian Medical Protective

Association. Alternative, informal judicial forums are

being used increasingly to address patient concerns in

Canada. Like Canada, Australia also has a more socialized

health system than the United States, although medical

malpractice concerns are similar to those of the United

States. Similar standards of medical negligence, grounded

in English common law, apply to medical malpractice lit-

igation in Australia. Earlier in this decade, two large

Australian insurers that financed the defense of medical

malpractice claims went bankrupt, necessitating a govern-

ment bailout. Malpractice insurance premiums increased,

leading to a debate about tort reforms and capitation limits

on claims.

Discussion

The purpose of this paper was to provide an overview of

medical malpractice in the United States, and the judicial

system developed to handle legal claims related to such.

The concept of holding a physician accountable for medi-

cal malpractice is grounded in ancient law, and modern tort

law related to medical negligence claims has evolved after

the principles of English common law, modified and

changed by numerous court decisions and legislative stat-

utes that vary from one state to another.

Lawsuits alleging medical negligence in the United

States are usually filed in a state trial court that has juris-

diction for the case. In some cases, malpractice claims may

be filed in a federal court. Medical malpractice law is a part

of civil law, rather than criminal statutes in the United

States. In contrast to some other countries, a jury trial is

used to adjudicate medical malpractice claims, and the role

of judges is relatively limited. The system is adversarial,

and designed to promote prelitigation settlement of dis-

putes between parties. Extensive legal tools, such as

depositions of parties to the litigation, have been developed

to encourage litigants to discover facts, assess the merits of

their arguments, and hopefully reach independent resolu-

tion of the case. Few cases will actually make it to trial.

To show that medical negligence occurred, the

aggrieved patient must show that a duty of professional

care existed, that such duty was breached when the phy-

sician deviated from the standard of care, and as a result of

such breach there was injury, and that such injury is

measurable in damages that the court can use to calculate

the redress owed to the plaintiff. These legal elements of a

medical malpractice case must be proven by the patient

suing the doctor, to the applicable standard of proof

required by law.

The contingency fee system of compensating plaintiff’s

attorneys has been criticized as promoting litigation, while

some meritorious claims that may have a low probability of

financial reward may never get filed. Defense lawyers are

usually appointed by the physician’s insurance carrier. Both

the direct costs of medical malpractice that are related to

insurance premiums and administrative costs, and indirect

costs related to altered physician behavior in the face of

threatened litigation are significant. Many efforts at tort

reform have been directed at the state level, as well as the

federal level in the United States with the goal of improving

the system and reducing litigation-related costs. Other

346 Bal Clinical Orthopaedics and Related Research

123

nations have developed similar systems of adjudicating

medical malpractice claims, with some notable differences;

comparisons among systems may be helpful in identifying

future reforms in the US medical malpractice system.

In summary, as technology and the demand for health-

care have increased, the complexity and incidence of

healthcare delivery, injuries, and adverse outcomes require

a system of patient redress that is equitable, fair, eco-

nomical, and just. The United States has an adversarial

system of adjudication of medical malpractice claims,

similar to the method of resolving other civil disputes.

Physicians are typically unaware of the intricate logistics,

structure, and functioning of the legal system until faced

with a lawsuit alleging medical malpractice. Even a jury

verdict in favor of the defendant physician can take a heavy

toll in terms of personal stress, discouragement, and time

commitment to the process. The experience of other

developed nations around the world suggests that there are

no simple answers to address medical malpractice; future

reform efforts will continue to develop a system that is

economically efficient, and adequately compensates those

injured by medical errors, while excluding frivolous and

opportunistic medical claims.

Acknowledgments I thank M.M. Manring, Ph.D., for his assistance in preparing this manuscript.

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