Defensive and Expensive:
The pros and cons of malpractice reform and
Redirecting consumers from a costly healthcare system
Audrey D. Snell
University of South Carolina Beaufort
Health Care Delivery Systems – BNUR 401
Somewhere in the history of the United States, the American people received the dubious moniker of being sue-happy or in practical terms, excessively litigious. After all, we are the society that lavishly awarded monetary damages to a woman for self –induced third degree burns while precariously balancing a cup of hot coffee in the seat of a moving car. Or better yet, allowing a burglar to sue the homeowner for injuries sustained while attempting to commit a crime. While most of us are humored by such frivolous lawsuits, medical malpractice suits can be devastatingly dreadful and quite expensive for all parties involved. In 1999, a plaintiff in New York successfully sued the physicians that delivered her for negligence in not recognizing that the umbilical cord was wrapped around her neck in utero resulting in permanent brain damage (Dodge, 2011). She was awarded over $76 million dollars (Prindilus v. New York City Health & Hospitals Corporation). While these cases may seem excessive, there is much debate on the topic of malpractice reform and concurrently ways to reduce waste and cost’s associated with our current system of healthcare delivery. Delving into the complex judicial system can be quite overwhelming and complex particularly to a student studying for the nursing profession with essentially no interest in courtrooms and lawyers. Reasoning such, it is important to understand the basic principles behind our adversarial system and principally the right to sue for medical malpractice. Four legal elements must be proven to show that a medical provider acted negligently in rendering care and that the negligence resulted in some type of injury. The first being a professional duty owed to the patient; essentially this is presumed whenever a physician undertakes the care of a patient (Bal, 2008). Second, a breach of duty by a physician for not adhering to the standards of professional care must be established. An obvious breach would be amputating the wrong limb or giving the wrong blood type. The legal term is called res ipsa loquitur (Latin for “the thing speaks for itself”). Third, there must be a causal relationship between the breach of duty and subsequent injury to the patient. If no injury is sustained, then fundamentally it is legally meaningless and the medical practitioner or hospital may freely espouse a “so what?” attitude (Bal, 2008). And lastly, the existence of damages related to the injury must be legally sufficient and a calculation of damages can be determined by the court. Monetary calculation or damages can be based on loss of work, medical expenses and related loss of income(s). Punitive damages are rarely awarded in medical malpractice cases as these are reserved for specifically egregious cases that we as a society want to discourage (e.g., sexual misconduct with an unconscious patient or deliberate mutilation of genitalia). So if one can prove any of the above occurred during their care under a medical professional, they may be entitled to millions of dollars, right? Perhaps, but according to David Leonhardt of The New York Times, “After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim”, and ‘All told, jury awards, settlements and administrative costs – add up to less than $10 billion a year”. This equals less than one-half of a percentage point of medical spending, so is reformation of frivolous lawsuits warranted? “According to a study by the Harvard School of Public Health, 40 percent of medical malpractice suits filed in the U.S. are ‘without merit.’” – Rep. Lamar Smith (R-Tex.), ranking Republican on the House Judiciary...
References: Bal, B. Sonny, MD, MBA (2008). An Introduction to Medical Malpractice in the United States.
The Association of Bone and Joint Surgeons
Dodge, Alicia M. (2011). Proposal Number 131. Albany Government Law Review Class.
Fox News Network, (2011). Lawsuit filed after toddler loses hand, both feet in 5-hour ER wait.
Leonhardt, David (2009). Medical Malpractice System Breeds More Waste.
The New York Times
Matthews, Melanie (2008). ER Redirection Grants Shot in the Arm for Primary Care.
University of California – Los Angeles (2012, October 29). Transforming America by
redirecting wasted health care dollars
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