Encyclopedia of Clinical Neuropsychology

2018 Edition
| Editors: Jeffrey S. Kreutzer, John DeLuca, Bruce Caplan

Medical Malpractice

  • Nathalie DeFabriqueEmail author
Reference work entry
DOI: https://doi.org/10.1007/978-3-319-57111-9_1007


Professional negligence


Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient. The physical or emotional injury is not considered intentional yet it deviates from the generally accepted standards of care that then results in harm to the patient. Negligence by a medical professional can include an error in diagnosis, treatment, or illness management. If such negligence results in injury to a patient, a legal case for medical malpractice can arise against the doctor and the hospital and local, state, or federal agencies that operate the treating facility.

Physicians and the facilities, where treatment is rendered, owe a duty of care and proper environment to those who seek their treatment. A person who alleges negligent medical malpractice must prove four elements to proceed with a claim. First, they must establish that duty of care was owed by the physician. Next, the claimant...

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References and Readings

  1. Baker, T. (2005). Page 3, First, we know from the California study, as confirmed by more recent, better publicized studies, that the real problem is too much medical malpractice, not too much litigation. In The medical malpractice myth (222 p). Chicago: University of Chicago Press.Google Scholar
  2. Bloom, J. B., Gair, Gair, Conason, Steigman & Mackauf. (2006). Medical malpractice study, disproving frivolous myth. The National Law Journal, July 3.Google Scholar
  3. For the full section, including exceptions, see N.Y. CPLR § 214-a, which can be found under CVP, Article 2, LIMITATIONS OF TIME, at The New York State Assembly official website. Accessed 24 Jan 2009.Google Scholar
  4. Gair, A. H. (1999). Preparing plaintiff’s expert in the post Kuhmo era. New York: State Bar Association.Google Scholar
  5. GAO-03-702. (2003). Medical malpractice insurance: Multiple factors have contributed to increased premium rates. General Accounting Office, June 2003. Accessed 3 Aug 2006.Google Scholar
  6. Giannini, A. J., Giannini, M. C., & Slaby, A. E. (1989). Suicide – The medical-legal implications. Psychiatric Forum, 14(2), 6–10.Google Scholar
  7. Hayward, R., & Hofer, T. (2001). Estimating hospital deaths due to medical errors: Preventability is in the eye of the reviewer. JAMA, 286(4), 415–420.  https://doi.org/10.1001/jama.286.4.415. PMID 11466119.CrossRefPubMedGoogle Scholar
  8. Laska, L. L., & Forrest, K. (2004). From the report, the premise that medical malpractice awards have been rising dramatically in the United States in recent years, driving up the cost of healthcare and forcing physicians out of practice, is not supported by relevant evidence. In Faulty data and false conclusions: The myth of skyrocketing medical malpractice verdicts. Commonwealth Institute.Google Scholar
  9. Limits on medical malpractice awards fail to cut insurance costs in Georgia, First published by the Associated Press, June 16, 2006. From the article, “More than a year has gone by, yet Georgia doctors have not saved a penny on their insurance, as promised, and the insurance companies are still raking in record profits.”Google Scholar
  10. Medical Malpractice Tort Reform, National Conference of State Legislatures, May 1, 2006. Accessed 3 Aug 2006.Google Scholar
  11. Medical News Today. (2004). In hospital deaths from medical errors at 195,000 per year in USA. Medical News Today. http://www.medicalnewstoday.com/medicalnews.php?newsid=11856. Retrieved on 2006.
  12. Most Mass. doctors face lower cost for malpractice coverage. From the article describing the study, “Despite assertions that high malpractice rates are driving them out of the state, Massachusetts doctors are paying less than they were in 1990, after adjusting for inflation, according to a Suffolk University Law School study.”Google Scholar
  13. National Law Journal, ‘Health courts’ offer cure USA Today, July 4 2005. Accessed 3 Aug 2006; and Health Courts Endorsed in Wall Street Journal by Betsy McCaughey The Wall Street Journal, August 24, 2005. Accessed 2 Aug 2006.Google Scholar
  14. Overcoming Lawsuits. First hand experience of an orthopaedic surgeon who suffered a medical malpractice litigation.Google Scholar
  15. Phillips, R. L., Bartholomew, L. A., Dovey, S. M., Fryer, G. E., Miyoshi, T. J., & Green, L. A. (2004). Learning from malpractice claims about negligent, adverse events in primary care in the United States. Quality and Safety in Health Care, 13(2), 121–126. PMID 15069219. PMC: 1743812.CrossRefGoogle Scholar
  16. Reeg, K. B., & Bebout, C. K. (1993). What’s it all about, Daubert? Journal of the Missouri Bar. http://www.mobar.org/journal/1997/novdec/bebout.htm. Retrieved on 1993.
  17. Sage, W. M., Thompson, M., Gorman, C., King, M. (2008). From the study, There is no nationwide crisis […] Malpractice is wrongly blamed for rising health care costs in the United States…. Experts have found little correlation between malpractice claim increases and malpractice premium increases. In The Jury’s still out: A critical look at malpractice reform. Center for American Progress.Google Scholar
  18. Studdert, D. M., et al. (2006). Claims, errors, and compensation payments in medical malpractice litigation. New England Journal of Medicine, 354, 2024–2033.CrossRefPubMedPubMedCentralGoogle Scholar
  19. Tancredi, L. R., & Giannini, A. J. (1994). The admissibility of scientific evidence in psychiatric malpractice: Junk science and the Daubert case. Journal of Clinical Forensic Medicine, 1(3), 145–148. PMID 16371283.CrossRefGoogle Scholar
  20. The Business Journal. (2004). Medical malpractice insurance roundtable: Doctors prescribe remedies for crisis. The Business Journal, Jun 11, 2004. Accessed 3 Aug 2006.Google Scholar
  21. The National Academy of Science. (2006). Medication errors injure 1.5 million people and cost billions of dollars annually. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=11623. Retrieved on 2006.
  22. Towers Perrin, Tillinghast, U.S. Tort Costs and Cross-Border Perspectives: 2005 Update, (New York: Towers Perrin, March 2006). Tillinghast/Towers Perrin is an interested party in the politics of tort reform with its operations as a major consultant to the insurance industry and as an insurance company itself with its reinsurance business.[dubious – discuss][original research?] Previous studies by Tillinghast/Towers Perrin study have been criticized by the Economic Policy Institute as unverifiable: “Although TTP’s estimate is widely cited by journalists, politicians, and business lobbyists, it is impossible to know what the company is actually measuring in its calculation of tort costs, and impossible to verify its figures, because TTP will not share its data or its methodology, which it claims are ‘proprietary.’”[opinion needs balancing][Neutrality disputed – See talk page].Google Scholar
  23. U.S. Const. Amend. VII.Google Scholar
  24. Yale New Haven Medical Center, Issues in Risk Management. (1997). The four elements of medical malpractice. New Haven: Yale New Haven Medical Center. http://info.med.yale.edu/caim/risk/malpractice/malpractice_2.html. Retrieved on 1997.

Copyright information

© Springer International Publishing AG, part of Springer Nature 2018

Authors and Affiliations

  1. 1.Cook County Department of CorrectionsChicagoUSA