It
is likely that no other type of civil litigation
has done more to improve the life style of
American citizens than medical malpractice
lawsuits. Health care in the United States
is among the best in the world, and while
doctors don't like to admit it, this is in
large part due to the scrutiny placed upon
the medical field by medical malpractice lawyers
pursuing medical malpractice legal claims.
The
law of medical malpractice is an outgrowth
of the general body of negligence law. It
is the law applicable to all lawsuits by attorneys
against medical professionals (doctors, nurses,
hospitals, physical therapists, pharmacists,
chiropractors, podiatrists) alleging negligence
in the rendition of medical services to their
patients. At common law, the duty of due care
by medical professionals was deemed to have
arisen out of the contractual obligations
which are created when a patient contracts
with a health care provider to perform health
care services. Even though some jurisdictions
still retain common law contractual concepts
in dealing with medical malpractice suits,
medical malpractice is now generally considered
by most attorneys, judges and legal scholars
to be an independent action in tort, rather
than in contract.
In the same sense that the ordinary body of
negligence law defines negligence as the doing
or the failure to do something that a person
of ordinary prudence would or would not do
under the same or similar circumstances, the
law of medical malpractice defines negligent
medical conduct as the doing or the failure
to do something that a reasonably prudent
health care professional in that field would
or would not do under the same or similar
circumstances.
In
negligence law the fictional "reasonable
man" standard has been created to evaluate
the conduct of the defendant alleged to have
been negligent. In medical malpractice law
the fictional "reasonably prudent health
care provider" standard has been created.
In both instances the terminology of the attorneys
revolves around the issue of whether the doctor
was "negligent."
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MEDICAL MALPRACTICE PRIMER>>>
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