Medical Malpractice

Medical malpractice litigation has increased greatly in recent years, and with it, the rise of medical malpractice law. Although tort reform efforts have targeted these lawsuits, their numbers and jury verdict amounts continue to increase. Because every state has its own body of medical malpractice law, some medical professionals have chosen to relocate to forums with larger restrictions on medical malpractice lawsuits. One such variable, the statute of limitations, ranges from one to four years among the 50 states. Other key state-specific variables within medical malpractice law include the applicable standard of care, caps and restrictions on economic, non-economic, and punitive damages, and the rules governing inclusion of expert testimony.

Many medical malpractice laws now require plaintiffs to file a certificate of merit along with their medical malpractice action. This certificate is typically an affidavit from a physician who has reviewed the facts of the case. The affidavit states that there is a reasonable probability that the care, skill, or knowledge exercised in the treatment of the plaintiff fell outside of acceptable standards and that such conduct was a cause in bringing about the plaintiff's harm. To prevail under medical malpractice law, a plaintiff must generally show that the medical provider breached a standard of care owed to the plaintiff and that the plaintiff was damaged as a result of that breach. To establish the standard of care owed to the plaintiff and to show that the standard was breached, the plaintiff must introduce expert testimony. In most states' medical malpractice law, an expert must be prequalified by the court in a Daubert hearing. Under Daubert, a court considers whether the expert's testimony is reliable and thus admissible on the basis of (1) whether his or her theory has been tested, (2) whether there are standards controlling the theory's operation, (3) whether the theory has been subject to peer review and publication, and (4) whether there is a high known or potential rate of error for the theory or technique.