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Medical Malpractices

Elements of the case

• A plaintiff must establish all four of the following elements, for a successful medical malpractice claim.
• A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
• A duty was breached -- the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitor or 'the thing speaks for itself').
• The breach caused an injury -- The breach of duty was a proximate cause of the injury.
• Damages -- Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

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The trial

Like all other tort cases, the plaintiff (or the plaintiff's attorney) files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties (or their attorneys) are required to 'share information' through a process known as discovery. Such information includes interrogatories, requests for documents, and depositions. If both parties agree, the case may be settled early on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible.

The fact finder will render a verdict for the prevailing party, and assess the compensatory and punitive damages, within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. A plaintiff who is dissatisfied by a small judgment may move for additur. A defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.

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Some Facts on Malpractices

Of all the malpractice trials in the United States last year, nearly 50% of them were against surgeons and other doctors representing only 75 of the largest counties in the United States. This is according to the Bureau of Justice Statistics, which is a very good source.

• It is estimated that about 25% of all the doctors in the United States get sued on an annual basis.
• It is also estimated that between 50 and 65% of all doctors in the United States are sued at least once in their career. That gives you less than a 50% chance of getting through your career without an incident.

Related Medical Malpractice Statistics

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Median medical malpractice payments by US state:

• $149,900 in median medical malpractice payments was made by physicians in Alabama 2003 (2003 Annual Report, National Practitioner Data Bank, US DHHS)
• $237,500 in median medical malpractice payments was made by physicians in Alaska 2003 (2003 Annual Report, National Practitioner Data Bank, US DHHS)
• $167,841 in median medical malpractice payments was made by physicians in Arizona 2003 (2003 Annual Report, National Practitioner Data Bank, US DHHS)
• $162,500 in median medical malpractice payments was made by physicians in Arkansas 2003 (2003 Annual Report, National Practitioner Data Bank, US DHHS)
• $60,000 in median medical malpractice payments was made by physicians in California 2003 (2003 Annual Report, National Practitioner Data Bank, US DHHS)

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