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Karina Kindell
Professor Voltz
Uwrt 1102-027-Fall 2015-EIP Final
November 28, 2015
The Trials of Medical Malpractice
The big question that should run through every prospective doctors mind is What is
malpractice? The idea of being sued for only trying to help people in need of medical attention
is crazy, but it happens. However, I believe the part that makes it the scariest is not knowing
what all a malpractice suits entails or how you get one, which is what I will be uncovering in my
research.
In-order to be sued for malpractice you must do at least one of three things

One Violation of standard care, this is where a physician is giving less care than what
is expected that do not adhere to the standards. If this happens the physician can be

found negligent causing a lawsuit ("What Is Medical Malpractice?").

Two Injury due to negligence, this one involves not only the lack of standard care but
the proof that an injury would not have occurred in the absence of negligence; without
an injury due to negligence no case can be mad against the physician ("What Is Medical

Malpractice?").
Three Injury resulted in significant damages, to claim significant damages one or
more of the following must have resulted due to medical negligence: disability, loss of
income, unusual pain, suffering and hardship, or significant past and future medical bills.
Going through any type of lawsuit can be expensive and if the payout is be too low the

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cost to sue might not be worth the cost one would receive in the end ("What Is Medical
Malpractice?").

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In data collected from the years 1991 to 2005 it was found that out of physicians in
twenty-five different high and low-risk specialties 7.4% of the 40,916 of them had a malpractice
suit brought against them. This is approximately 3,027 physician. However only 1.6% of the
claims resulted in payment totaling approximately 654 physicians who lost a malpractice suit.
They further broke it down by specialty for the highest specialties that faced a claim and some of
the lowest specialties that faced a claim. Of course, neurosurgery was number one at 19.1% that
is about 578 neurosurgeons. Second was thoracic-cardiovascular surgery at 18.9% about 572
cardiothoracic surgeons. Third was general surgery at 15.3% totaling 463 general surgeons.
When you get lower on the scale it drops substantially to 5.2% for family medicine around 157
physicians, pediatrics 3.1% approximately 93 physicians, and psychiatry at 2.6% close to 78
psychiatrist (Anupam). The specialty in which a doctor works in is not the only thing the raises
the risk for a malpractice suit. The length in which one practices medicine increases ones
chances as well. It was assessed that 75% of physicians in low-risk specialties will have a
malpractice suit brought against them by the age of sixty-five and 99% in high-risk specialties
(Anupam). The longer you practice medicine the likelihood of getting a malpractice suit
increases naturally, which is why the percentage is predicted to be so high.

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has been done that showed physicians who apologized and seem apologetic can often make a law
suit go away (Thomas). I think they just want you make sure that you know that person mattered
to them and they were not just some person on your table. In Addition, doctors who
communicate more with their patients are also
less likely to be sued for malpractice as well
(Thomas).
Every doctor needs medical malpractice
insurance. Depending on your specialty you may
pay more or less than other physicians. The
insurance is just a precautionary and even a
physician that does not make a mistake can be
sued. Malpractice suits can be very expensive for a physician even if they win due to the cost of
legal and expert witness fees
along with other expenses
("Medical Malpractice
Insurance"). For the most
part, the fees should be
covered after you pay your
deductible, if you follow all
the proper steps, you dont go
over the limit, and above all
do anything illegal such as alteration of files. The limit is the maximum amount of money the
insurance will pay. Most limits are $1,000,000/$3,000,000 meaning the maximum of $1,000,000

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per claim and a maximum of $3,000,000 per claims in a policy trial. Some states are as low as
$100,000/$300,000 but most are $1,000,000/$3,000,000 ("Medical Malpractice Insurance").
You hear me talk about the long process of going to trial over a malpractice suit so you
are probably wondering What all does it entail? There are three phases and within each phase
there are different steps in each phases one must do or else their insurance carrier could possible
not pay all that they should.
Phase one The Pursuit Notice Period. What a physician does here is vital to the case,
for without the proper steps of notification there can be potentially harmful conduct. First you
are served with a notice letter. This is notifying the physician of the potential of a lawsuit. The
notice is required to encourage out of court settlements and is in no way affiliated with the
courts, nor is an actual lawsuit. Once the physician has been notified of they must immediately
notify their insurance carrier. If there is a delay it may endanger coverage. They must also send
any and all relevant papers that relate to the case which might take place. Then the patients chart
must be put in a safe location where nothing can happen to it. If there is even the slightest bit of
an appearance of altercation it can be extremely harmful towards the case. The last part of phase
one is discussing the claim. Claims should only be discussed with their insurance carrier. Any
discussions with fellow physicians would have to be communicated and used if a lawsuit were to
develop, even those unfavorable to the physicians position (Bowen).
Phase two The Life of a Lawsuit this has the most steps. The lawsuit has begun and
the physician must notify their carrier as they did before with the notice. It is suggested to call
the carrier first then forward a copy of the citation and petition. The physician is then assigned
a lawyer and the defense will begin. After the lawsuit is filed, the discovery phase may

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commence. Each party has a chance to gather any relevant information from the other party.
Discovery can take many forms: Interrogatories, Request for Disclosure, Request for
Production, Request for admissions, Expert reports, and Depositions (Berry). During the
discovery questioned are asked, and information is requested such as, potential witnesses,
experts, and documentation (Berry). Primary Defense The best way for a plaintiff to win a
malpractice suit is to have an expert witness testify. The expert witness must have training or
experience in the field and be able to state that the physician was negligent in their actions.
Statute of Limitations the plaintiff has two years from the time in question to file a lawsuit.
However, you can extend it three ways: a notice letter, which extends it seventy-five days; a
minor plaintiff, if the plaintiff is a minor the time does not begin until the plaintiff turns eighteen,
or there is a failure to discover the basis of the lawsuit, for example if a surgical instrument
was left inside a patient, and it was not discovered until after three years, they plaintiff has two
year from that point on to file a lawsuit. Mediation is a chance the court gives to allow a
chance to settle out of court. Finally, there is the Pretrial Modes of Disposition. If an
agreement is made before trial one of the following will happen Motion for summary
judgement, Motion to dismiss, Voluntary nonsuit, or a Settlement. If an agreement is not
reached before the court date, the lawsuit will for to trial (Berry).
Phase Three Everything that has been done was to prepare for this, however this will
be an extremely demanding undertaking for both the lawyer and the physician. A trail can take
anywhere from1 to 3 years in a state district court, but only 1 to 1 in a county court (Berry).
I know it is a lot of information and now you can see there is a lot that must go into a
medical malpractice lawsuit. If you are thinking about making a lawsuit against a physician,
make sure that you are ready to do all that it entails. If you are a physician, and you find yourself

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starting down the whole of a possible lawsuit, try apologizing, it does help. If that does not
work, make sure you follow all the proper protocols so if you are found at fault, you do not risk
having to pay to total cost yourself.

Work Cited and Consulted

Berry, Bowen. "The Physician's Guide to Medical Malpractice." Proceedings (Baylor University.
Medical Center). Baylor Health Care System, 14 Jan. 2001. Web. 20 Oct. 2015.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1291321/

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Jena, Anupam, Seth Seabury, Darius Lakdawalla, and Amitabh Chandra. "Malpractice Risk
According to Physician Specialty." The New England Journal of Medicine. U.S. National
Library of Medicine, 18 Feb. 2012. Web. 20 Oct. 2015.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3204310/
"Medical Malpractice Insurance." Frequently Asked Questions About. Contemporary Insurance
Services, INC. Web. 20 Oct. 2015. http://www.cisinsurance.com/FAQ/all-faqs.cfm
Sloan, Frank A., and Lindsey M. Chepke. "Reforms: What Can Be Done." Medical Malpractice.
Cambridge, Mass.: MIT, 2008. Print.
Thomas, Carolyn. "Why Doctors Get sued." The Ethical Nag. 15 Oct. 2010. Web. 12 Nov. 2015.
http://ethicalnag.org/2010/10/15/why-doctors-get-sued/
What Is Medical Malpractice?" What Is Malpractice? American Board of Professional Liability
Attorneys. Web. 20 Oct. 2015. http://www.abpla.org/what-is-malpractice