Medical malpractice

Medical malpractice is lay terminology for negligence that occurs in respect of a doctor's treatment of a patient.

Trial of claims

In common with other forms of claims for negligence, in order to succeed in a claim (lawsuit) the claimant (plaintiff) must successfully demonstrate three things:

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• That the doctor failed in his/her duty of care towards the patient: they failed to do something that a reasonably prudent doctor in the same field would have done under the same or similar circumstances, or that the doctor did something that no reasonably prudent doctor in the same field would have done under the same or similar circumstances.
• That some harm was caused by this failure to comply with the duty of care, and that the harm risked by such misconduct was reasonably foreseeable at the time.
• The amount of damages that would reasonably compensate the plaintiff for the harm caused by the malpractice.

In the United Kingdom, a doctor must be shown to have acted in accordance with a reasonable body of medical opinion. This is known as the Bolam Test. In Australia, this test has been replaced.

Related Topics:
Bolam Test - Australia

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Expert witnesses usually are required to testify in malpractice cases. Expert witnesses are allowed to testify in terms of opinions, while lay witnesses must confine their testimony to things they perceived with their own senses. Witnesses generally are qualified as experts if they have sufficient education, training, and experience in the field and their testimonial opinions would assist the factfinder (judge or jury), in determining a contested issue. The courts generally hold that lay jurors or judges, untrained in medicine, are not adequately equipped to decide whether the doctor deviated from the requisite standards without being guided by expert witnesses in the field. Expert witnesses in some instances may be independent experts from the same field of medicine as the defendant. However, usually the plaintiff and the defendant will each hire their own experts, who will have conflicting opinions. It is up to the factfinder to sort out which opinions to accept.

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In the United Kingdom such cases are heard by a judge who decides on questions of fact and law; in other jurisdictions, the questions of fact may be decided by a jury.

Related Topics:
United Kingdom - Jury

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