Medical malpractice occurs when a health care provider acts or fails to act in a way that does not meet the accepted standard of medical practice and there is a resulting injury to the patient. While the accepted standard varies from jurisdiction to jurisdiction, the standard of care is generally judged at a level of care with which a patient would reasonably expect his or her health care provider to act. There are various movements to enact legislation that would effect medical malpractice reform through significant changes in the law. This medical malpractice reform would shift the burden more in the favor of the health care provider. Its proponents argue that such reform would lower health care costs through a trickle down effect that would begin with a reduction of health care providers’ professional liability insurance.
Health care providers can be held liable for medical malpractice in the event that their treatment of a patient is deemed to be medically inappropriate based on the protocol typically followed by similar practitioners in their region of the globe. Those who suffer injuries from such poor professional conduct may sue the practitioner for any injuries caused by that conduct. For example, if a doctor fails to diagnose a medical condition that is typically diagnosed given the circumstances, the patient may follow the protocol in their jurisdiction to sue for medical malpractice and obtain damages. Damages are typically calculated by considering medical costs, lost wages, as well as non-economic factors such as pain and suffering.
Proponents of medical malpractice reform have argued for several changes in the structure of medical malpractice litigation. One such common change is for the operation of special “medical malpractice” courts. In these courts that would try exclusively medical malpractice cases, there would be a judge or a panel that would decide the result after hearing the cases — with no jury trial. Proponents argue that eliminating the jury from the equation would have the dual effect of limiting excessive awards for non-economic damages — that is damages that are not directly tied to actual costs to the harmed patient — and increase the efficiency of such proceedings. Those who oppose the measure argue that jury trials are central to judicial process and eliminating that aspect unreasonably harms the rights of the injured.
Another, more simple suggestion by proponents of medical malpractice reform is to limit the amount of non-economic damages that may be awarded in a medical malpractice case. By putting a hard cap on the amount of damages awarded, proponents of medical malpractice reform argue that excessive awards for pain and suffering would be eliminated. Opponents of this cap argue that the rights of the harmed should not be limited in such a way that limits the amount of money they may collect in damages without taking context of the situation into consideration.