The negligence committed by a medical professional is also known as medical malpractice. While many accidents occur in hospitals and in the practice of medicine in general, some of them could have been avoided. The patient may file a suit for damages whenever he is aggrieved by the negligence caused by the medical professional.

Elements of a Medical Malpractice Claim

For negligence to be “actionable” (having all the components necessary to constitute a viable cause of action — and thus a legitimate lawsuit), the following elements must exist:

• The duty owed to someone must be something existing.
• The breach duty must have been committed by the medical professional.
• The damage has been caused proximately by the breach committed and the harm has been done to the person whom the medical professional was dutybound to protect.

The simplest way to apply the concept of proximate cause to medical malpractice is to ask whether, “but for” the alleged negligence, the harm or injury would have occurred. If it can be proven that the injury was inevitable with or without the occurrence of the malpractice committed by the medical professional, there is no valid claim for medical malpractice.

The Duty of Care

As a physician, there are legislation which mandate him to have the duty of care for the patients.  In U. S. jurisprudence, a person has no affirmative duty to assist injured individuals in the absence of a special relationship with them (such as doctor-patient, attorney-client, guardian-ward, etc.). However, once a doctor voluntarily decides to assist others or come to their aid, he or she becomes liable for any injury that results from any negligence during that assistance. The duty of care by the physician for the patient is already present once the physician-patient relationship has already been established.

Tort Reform

Much of the reasoning behind tort reform is the notion that medical malpractice lawsuits are one of the biggest drivers of high medical costs. Tort and all claims for torts are usually the most costly medical expenses. However, a study published by the Congressional Budget Office in 2009 concluded that limiting malpractice liability would limit health care spending in the U.S. by just one-half of 1 percent. Doctors have been fearing to be sued. Because of this, they have been practicing what is popularly called the defensive practice of medicine.

Today, most states have already placed limits on possible attorney’s fees. This is because some lawyers have abused their privilege of billing the clients. Moreover, almost all states now have two year statutes of limitations for standard claims, and have eliminated joint and several liability in malpractice law suits. At the federal level, the Congress is still struggling on creating absolutely good laws which may eliminate the tort caused by medical professionals.