The Torture of Negligence in Relation to Medical Malpractice

One of the most well known torts is negligence, specifically how it relates to medical malpractice, Medical malpractice is one area where tort reform is argued most heavily, Often time those in favor of tort reform argue that the fear of a malpractice suit prevents those in the medical field from performing theirjob at a high standard, whereas those in favour of tort reform argue that victims of medical malpractice should not be limited by what they can receive as compensation should something happen to them In this essay I will explore what exactly is medical malpractice, and how it relates to both sides of the tort reform argument, In order for a plaintiff to prevail in a medical malpractice case they must prove negligence on the behalf of the defendant.

In order to prove that the defendant was negligent four criteria will need to be met; duty by the defendant, a breach of that duty, the breach was the actual and proximate cause of the harm suffered by plaintiff; and that damages resulted to the plaintiff.

Once a duty has been established the plaintiff must show that that duty was breached, typically the presence of an injury is enough to satisfy this part of the negligence criteria Next causation must be determined by answering whether or not the defendant’s actions were the proximate cause of the plaintiff’s injury, The final element of negligence in a medical malpractice suit is damagest If the plaintiff has sustained a legally recognizable injury then compensation must be awarded, It is up to the jury to decide the amount of compensation that the plaintiff will receive.

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Adefendant has several defenses against a medical malpractice claim, These defenses include including contributory negligence, assumption of the risk and comparative negligence With the contributory negligence defense a plaintiffs own negligence whether large or minor, bars them from any sort of recovery.

Most state abide by the comparative negligence defense. With comparative defense a jury must decide how much the plaintiff was at fault in the case, and in turn their total recovery amount is reduced by that amount. The final option for a defendant is the assumption of risk defense. The assumption of risk defense would apply if the plaintiff knowingly and voluntarily assumes the risk of participating in a dangerous activity, then the defendant is not liable for injuries incurred (Module 5: Torts and Consumer Protection} There are many arguments to be made both in favour and against tort reform. Those in favour of tort reform often argue that current laws cause medical professionals to sacrifice the care they provide to patients for the benefit of cost savings because their malpractice premiums are so high.

Take for instance the example provide by Caitlin Kenney “Your patient example may have a 1-2 percent risk that this chest pain is a heart attack. 98 times I make the right decision to send him home, however, if I am wrong and the patient has a heart attack, I‘m at fault”(Kenney, 2009). Rather than practicing preventative medicine and aiming to prevent the 1-2% chance of a heart attacked, doctors leans towards to odds of it not being a heart attack because it’s much cheaper for them to treat. The other side of the argument is those against tort reform. They argue that when someLhing goes wrong and the care provider is at fault there should not be any limits on the amount of damages that they can receive.

Take for instance the case of Steven Olsen. Olsen is blind and brain damaged as a result of medical negligence Ultimately a jury awarded him 71 million in non economic damages as a result. However, the jury was not made aware of a two decade of law limiting the amount of compensation in medical malpractice claims to $250,000. Tort law is a very important aspect of the American judicial system as it protects citizens from harm against one another in various ways. Medical malpractice law will continue to be a controversial topic relating to tort negligence law because it involves professionals that people trust with their lives, but at the same time is not always enforced in a ways that allows medical professionals to fully do theirjob.