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The word ‘liability’ carries certain negative connotation. It generally evokes a perception of being ‘burdensome’ ‘bothersome’ and arguably, a ‘nuisance.’ As a result, any cause for liability is to be avoided, at all costs. This is a disposition that benefits both consumer and industry. In theory, the consumer does not want to have a reason to sue and the industry does not want to give them, leading to increased standards of quality for whatever good or service is rendered – indicating the practical function of liability.
If and when a claim does arise, the judgment of liability will be handed down within the tort system, the area of the justice system dealing exclusively with issues of liability and breaches of duty. The tort system has long courted controversy; lawmakers, constituents and commentators alike are eager to chime in with their two-cents. Many call it a broken system, citing exorbitant costs the effects of which ripple to a number of other social areas, compensating the few at the cost of the many. Detractors offer some valid points, but the fact remains that a tort system is necessary for the protection of consumer rights (which includes ‘consumers’ of medical services) and public safety at large. If there is no punishment in place for considerable mistakes, what’s to deter them? Medical liability for tortuous acts serves a particularly important function in maintaining the integrity of medical standards. It is nearly impossible to have a discussion of tort law without discussing one of its most vital manifestations – medical tort law. More than any other industry, room for error in medicine is slight, and a strict adherence to standard is critical.
The United States Civil Court System
To explore the place and importance of medical tort law, let us begin with the basis of the greater tort system. ‘Tort’ is a word from the French language; in legal terminology is means a civil wrong. A person who commits a civil wrong is called a tortfeasor. If sued they become the defendant in the suit. To be liable for tort, the alleged tortfeasor must have had a legal duty to the plaintiff. Duty is defined as ‘an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.’ A special legal relationship between plaintiff and defendant is not present in all tort cases, but for medical malpractice cases it is almost uniformly present. A tortuous act can either be classified as misfeasance or nonfeasance. Misfeasance indicates that the individual took incorrect action (such as prescribing the wrong medicine for an illness). Nonfeasance indicates that the individual failed to take any action (prescribing no medicine at all). Unlike criminal cases which are initiated by the state, tort cases are civil suits initiated by the wronged party. Medical malpractice, in most cases, is a civil wrong.
‘Civil wrong’ is distinguishable from offenses we would classify as ‘crime.’ An individual will be liable for failing to meet their reasonable legal duty not to harm another party, but the action is not necessarily ‘criminal.’ For example, sloppy medical care that proximately injures a patient is a punishable civil wrong, but it is not a criminal feat and usually will not constitute jail time (except in extraordinary cases). Given the elevated stakes and penalties of criminal cases, there is a higher burden of proof levied on the prosecution. Tort cases only require a preponderance of evidence, while criminal cases require the standard of evidence be ‘beyond a reasonable doubt.’ The greater tort system encompasses a vast array of civil wrongs, some of which do amount to crimes.
Rules of Civil Procedure
Balancing the interests of injured parties and accused tortfeasors has been a complicated legislative endeavor. Each state writes its own tort law, often seesawing back and forth in their legal disposition. Efforts to legislate evenhandedly are usually tainted. Most states’ laws exhibit a degree of favoritism toward patient or provider, ironically in an effort to offset previous legal favoritism to the other party, whether it was an intended or unintended consequence. Tort is not limited to physical, emotional and economic injury/loss. Its reach includes auto accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts.) Torts may be the result of negligence, or could have been intentionally carried out to deprive another person of safety, privacy, property etc. Prior to the Federal Tort Claims Act, sovereign immunity shielded the federal government from tort suits, even if a blatant tort occurred (i.e. a postal worker hitting a pedestrian). The FTCA opened up government employees acting within the scope of employment to be susceptible to tort suits.
Tort law is the mediator between wrong and remedy. However, not every wrong is the domain of tort law. Drug possession or murder, for example, are not torts. Tort constitutes an evidential departure from an individual’s explicit or implicit duty. In medical malpractice cases, a doctor is guilty of malpractice if the plaintiff satisfactorily proves that they deviated from the “duty of care” which they owed to the patient by nature of their profession and proximately harmed the patient by deviating from that standard. That is to say, there was an expectation, legal or implied, of best conduct not to injure (injure here having broad meaning) which the tortfeasor failed to meet.
Tort suits can be broken down into a few general categories. Negligent torts, intentional torts, and strict liability. Strict liability is at the heart of class action suits, usually imposed on manufacturers to maintain the integrity of products on the marketplace and ensure no product is harmful to a consumer when used. Unlike negligent torts, which are best described as harmful acts of carelessness, intentional torts occur when the tortfeasor was aware of the consequence of their action and knowingly proceeded with the goal of obtaining that result.
Medical Tort Law and The Standard Of Care
The primary function of tort suits is to secure compensation for the injured party. Punishing the tortfeasor is secondary by comparison, which is accomplished by imposing financial strain since jail time is usually off the table for acts of negligence, except in especially reckless cases. However, tort law was not conceptualized purely for the purpose of providing monetary damages – it is also an essential tool for enforcing industry standards. Liability for medical torts is especially critical to public safety, ensuring medical personnel is aware of the consequence of providing a poor quality of service, thereby deterring careless mistakes.
Medical care is a service purchased by consumers, as it has not yet reached the status of a universal right, but with human life involved, the stakes of medical care are much higher, and there should be very little room for error. In other professions, there is room for error and the results of error are hardly detrimental. If a cashier forgets to include your receipt, doesn’t bag an item you paid for, or a store associate doesn’t lead you to the proper aisle, or a barista uses whole milk when you asked for skim – these are all common workplace errors for which none of these hypothetical workers could be held legally liable. If some law were in place that would make workers legally and financially liable for these mistakes, you can almost be assured that their incidence would drop dramatically.
They would still occur, undoubtedly but instances would be far rarer. This is why medical malpractice liability is in place. Not only as means for injured patients to secure compensation for their injuries and suffering but to maintain the integrity of fairly airtight medical standards. Human life is far too precious to have an overly condoning legal system that does not adequately police potentially injurious or fatal medical error. Every field within medicine has an explicit and accepted standard of care which, even if not laid out in legal doctrine, is known and uniformly practiced by all professionals in that practice area. This is why expert testimony became an essential facet of medical malpractice law and a facet of tort reform in states that had no legal requirement for expert testimony on the books. It is up to the testimony of a medical expert in the same field as the defendant to determine whether or not a breach of the standard of care occurred.
However, this creates a unique and perhaps ethically questionable situation whereby medical professionals, by virtue of the relative enigma of their profession are subject to a sort of self-policing. Physicians of a given field do not convene to think of ways to cheat the patient by creating faulty standards of care and then universally accepting them in their field, however, regulations are self-guided and there is no objective third party laying down the guidelines for the standard of care in a given medical practice field.
The Drawbacks of The Medical Tort System
Decades of medical malpractice court decisions have yielded millions in damage awards to injured plaintiffs, but in this very sensitive and interwoven system, there have been many unintended consequences. Defensive medicine is a term for doctors who practice with the fear of liability in mind, ordering an excess of tests, scans and sometimes procedures and treatments so as to be overly certain that they have not failed to notice or treat the patient’s malady, thereby eschewing liability. This leads to an elevation in healthcare costs.
Although inflation is at fault for increasing damage amounts, at least in part, the increasing scale and frequency of damages awarded in malpractice cases have led healthcare providers to obtain malpractice liability insurance for which premiums keep going up. Increased expenses for physicians means increased costs for the services they provide. This proximately contributes to rising healthcare costs. States have attempted to combat this liability insurance issue by establishing injured claimant funds which will pay out damages to a winning plaintiff for amounts exceeding $1,000,000 (in Wisconsin), thus physicians are only required to keep liability insurance up to 1 million dollars. They also must make annual contributions to the fund, but the overall cost is less than what it would be with exclusive liability insurance for amounts greater than $1 million. Still, these efforts have not entirely curbed the effect of heightened health care costs. California‘s Medical Injury Compensation Reform Act has been heralded as an excellent model for tort reform.
Many issues and general conundrums face the tort system, which serves its purpose too well at times and at others falls entirely short. States that have imposed damage caps for plaintiff awards in tort cases battle the question of if this is a form of deprivation of rightful compensation. Elsewhere, damage awards are extravagant even if subject to a cap, given the nature of the suit that engendered them. Defendants found guilty in tort cases could also be liable for punitive damages, which do not function to compensate the plaintiff but to punish the guilty party. There is discord among experts and tort scholars as to whether or not recent years have really seen a “litigation explosion,” with each side presenting conflicting statistics.
Not to say tort was an area of law that was freeform or poorly regulated, but after observing the effects of a tort system that was feebly constructed with regard to how tort suit decisions would affect other aspects of society, the need for reform was elucidated. Detractors of the tort system allege that it is frightfully inconsistent, with great variation in treatment from state to state, county to county, and even court to court; they allege that frivolous suits clog the court docket, and that tort cases exact an exorbitant cost which has come to undermine the integrity of many industries. Tort law has a unique relationship with healthcare and medical malpractice has been cited as one of the reasons.