What is a Medical Malpractice Tort?

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  • Written By: John Markley
  • Edited By: Melissa Wiley
  • Last Modified Date: 10 October 2019
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A medical malpractice tort is an act committed by a medical professional that causes harm to a patient due to the health care provider's professional negligence. It encompasses professional negligence by people such as physicians, nurses, and psychologists. The victim of the tort has the legal right to sue the person who committed the tort, called the tortfeasor, for damages. Depending on the circumstances, the victim may also have the right to sue the organization the medical professional is affiliated with, such as a hospital. The precise standards for declaring an act a medical malpractice tort vary depending on jurisdiction.

To be considered a medical malpractice tort, an act must fulfill four requirements. First, the tortfeasor must have owed a legal duty to the patient. Medical professionals and institutions owe a duty of care to patients they treat and are legally obligated to act according to the standards of their profession.

Second, the medical professional must have breached this duty. This is often referred to as the Bolam test in reference to the commonly cited case of Bolam v Friern Hospital Management Committee. According to this standard, a medical professional is negligent if he or she has represented himself or herself as a person with medical expertise and then failed to act in a way that a reasonable body of professionals in his or her field would consider responsible and proper.


This reasonable body does not have to be the majority or mainstream opinion. Acting according to ideas held by only a minority of professionals in the field is not negligent, provided that this minority is composed of people regarded as legitimate professionals in the field and does not go against an otherwise overwhelming consensus in that field. For example, if a minority of surgeons considered legitimate in their field believe that a particular surgical procedure is the best way to treat a patient who has suffered blunt force trauma to the spleen, then treating it that way is not negligent even if most surgeons believe that some other procedure should have been used instead. On the other hand, a surgeon who operated on patients while wearing soiled biker gloves instead of surgical gloves would be considered negligent, because no respectable surgeon would consider that an acceptable practice.

Third, to qualify as a medical malpractice tort, the medical professional's breach of legal duty must have been what is called a proximate cause of the injury to the patient. In most cases, this means that the injury to the patient must be a reasonably foreseeable consequence of the breach that would not have happened if the tortfeasor had properly fulfilled his or her duty of care for the patient. This is often a very complex area, as in many cases it is difficult to determine how much of the harm suffered by the victim was due to negligence and how much was an inevitable result of the illness or trauma being treated and would have occurred even with proper care.

Finally, the patient must have suffered damages. In the case of medical malpractice, this can include economic harm from medical expenses and lost wages as well as non-monetary harms such as disability, physical pain, and psychological distress. The patient, or his or her heirs if the malpractice is fatal, can sue for compensatory damages for these injuries. If the professional negligence resulting in the tort is particularly grave, the victim may be eligible to receive punitive damages as well.



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