Medical
malpractice
Medical malpractice is a broad term which covers both
the public perception of adverse events during medical
care, and a legal definition of negligence.
In common with other forms of civil claims for negligence,
in order to succeed in a claim (lawsuit) the claimant
(plaintiff) must successfully demonstrate three things:
1. 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.
2. 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.
3. The amount of damages that would reasonably compensate
the plaintiff for the harm caused by the malpractice.
A doctor will not be expected to be the best doctor
in the country, but he or she must be shown to have
acted in accordance with a reasonable body of medical
opinion. This is known as the Bolam Test.
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 hire their own experts, who will
have conflicting opinions. It is up to the factfinder
to sort out which opinions to accept from those that
are incapable of belief.
In the United Kingdom such cases are heard by a single
judge; in other jurisdictions, they may be heard by
a jury.
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