Medical Malpractice

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Medical Malpractice

Sections within this essay:

Actionable Malpractice
Failure to Diagnose or Erroneous Diagnosis
Failure to Treat or Erroneous Treatment
Substandard Care, Treatment, or Surgery
Gross Negligence
Unauthorized Treatment or Lack of Informed Consent
Guaranteed Results or Guaranteed Prognosis
Breaches of Doctor-Patient Confidentiality
Vicarious Liability

Patient's Contributory or Comparative Negligence
Medical Malpractice Tort Reform
State Tort Reform Statutes for Malpractice Actions
Additional Resources


Medical malpractice is negligence committed by medical professionals. For negligence to be "actionable" (having all the components necessary to constitute a viable cause of action), there must be a duty owed to someone, a breach of that duty, and resulting harm or damage that is proximately caused by that breach. The simplest way to apply the concept of proximate cause to medical malpractice is to ask whether, "but for" the alleged negligence, the harm or injury would have occurred.

When determining whether the conduct of a member of the general public is negligent, the conduct is judged against a standard of how a "reasonably prudent person" might act in the same or similar circumstance. Conversely, when determining whether a medical professional has been negligent, his or her practice or conduct is judged at a level of competency and professionalism consistent with the specialized training, experience, and care of a "reasonably prudent" physician in the same or similar circumstances. This constitutes the "standard of care" or professional "duty" that a physician owes to his or her patient. If the physician breaches the standard of care and his patient suffers accordingly, there is actionable medical malpractice.

The term "patient" generally refers to a person who is receiving medical treatment and/or who is under medical care. In many states, other licensed medical professionals such as chiropractors, nurses, therapists, and psychologists, may also be sued for malpractice, i.e., negligently breaching their respective professional duties owed to the patient. The following sections refer generally to medical malpractice as it relates to medical doctors/physicians.

Actionable Malpractice

State laws govern the viability of causes of action for medical malpractice. The laws vary in terms of time limits to bring suit, qualifications of "expert" witnesses, cognizable theories of liability, and proper party defendants/proper party plaintiffs. Notwithstanding these differences, there are common requisites for all cases.

First and foremost, a physician must owe a duty to patients before his or her competency in performing that duty can be judged. In U. S. jurisprudence, a person has no affirmative duty to assist injured individuals, -in the absence of a special relationship with them (such as doctor-patient, attorney-client, guardian-ward, etc.) A doctor dining in a restaurant has no duty to come forward and assist injured others if they suffer a heart attacks while dining in the same restaurant. If the doctor merely continues with his meal and does nothing to help, the ailing others would not have an action for malpractice against him, not-withstanding their harm. However, once a doctor voluntarily decides to assist others or come to their aid, he or she becomes liable for any injury that results from any negligence during that assistance.

Once the requisite doctor-patient relationship is established, the doctor owes to the patient the duty to render care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances. The "circumstances" include the area of medicine in which the physician practices, the customary or accepted practices of other physicians in the area (the "locality rule"), the level of equipment and facilities available at the time and in that locality, and the exigent circumstances, if any, surrounding the treatment or medical service rendered. The requisite degree of skill and expertise under the circumstances is established by "expert testimony" from other practicing physicians who share the same or similar skill, training, certification, and experience as the allegedly negligent physician.

Failure to Diagnose or Erroneous Diagnosis

Generally, a delay or failure to diagnose a disease is actionable, if it has resulted in injury or disease progression above and beyond that which would have resulted from a timely diagnosis. This situation may be difficult to prove. For example, a patient may allege that a doctor failed to timely diagnose a certain cancer, resulting in "metastasis" (spread of the cancer to other organs or tissues). But experts may testify that "micrometastasis" (spreading of the disease at the cellular level) may occur as much as ten years before a first tumor has been diagnosed, and cancerous cells may have already traveled in the bloodstream and lodged elsewhere, eventually to grow into new tumors. Therefore, it may be difficult in some cases to establish that a patient has suffered a worse prognosis because of the failure or delay in diagnosis.

If a patient is treated for a disease or condition that he or she does not have, the treatment or medication itself may cause harm to the patient. This is in addition to the harm caused by the true condition continuing untreated.

Most doctors are trained to think and act by establishing a "differential diagnosis." Doing so calls for a doctor to list, in descending order of probability, his or her impressions or "differing" diagnoses of possible causes for a patient's presenting symptoms. The key question in assessing a misdiagnosis for malpractice is to ask what diagnoses a reasonably prudent doctor, under similar circumstances, would have considered as potential causes for the patient's symptoms. If a doctor failed to consider the patient's true diagnosis on his/her differential diagnosis list or listed it but failed to rule it out with additional tests or criteria, then the doctor is most likely negligent.

Failure to Treat or Erroneous Treatment

The most common way in which doctors are negligent by failing to treat a medical condition is when they "dismiss" the presenting symptoms as temporary, minor, or otherwise not worthy of treatment. This situation may result in an exacerbation of the underlying condition or injury, causing further harm or injury. For example only, an undiagnosed splinter or chip in a broken bone may result in the lodging of a piece of bone in soft tissue or internal bleeding caused by the sharp edge of the splintered bone.

Erroneous treatment is most likely to occur as a result of a misdiagnosis. However, a doctor who has correctly diagnosed a disease or condition may nonetheless fail to properly treat it. Other times, negligence is the result of a doctor attempting a "novel" treatment that fails, when in fact a more conventional treatment would have been successful.

Substandard Care, Treatment, or Surgery

The standard of care which is owed to people as a patients is that which represents that level of skill, expertise, and care possessed and practiced by physicians found in the same or similar community as the relevant one, and under similar circumstances. However, the advent of "national board" exams for new doctors and "board certifications" for doctor-specialists has resulted in a more uniform and standard practice of medicine not dependent upon geographic locality.

All licensed physicians should possess a basic level of skill and expertise in diagnosing and treating general or recurring types of illnesses and injuries. Thus, a general practitioner who has administered substandard cardio-pulmonary resuscitation (CPR) to a heart attack victim (who subsequently dies as a result of the substandard care) cannot defend that he or she was not a "cardio-pulmonary specialist." A general practitioner from virtually any other area in the United States could most likely testify as to the level of care and expertise that is to be expected under the circumstances. Conversely, a board-certified cardiopulmonary specialist could not testify that the general practitioner should have done everything that the specialist might have done with his advanced skill and training. Nor, under the locality rule, could an oncology specialist in private practice in Smalltown, U. S. A., be held to the same standard of care as an oncology specialist in a large urban university teaching hospital that has state-of-the-art equipment and facilities.

Because doctors are often reluctant to testify against their colleagues (referred to by lawyers as the "conspiracy of silence"), it may be difficult to find an unbiased expert willing to testify against a negligent doctor or label the care as substandard. This is resistance applies even when they practice on opposite sides of the country: they may know one another from the national board certifications or fellowship programs established for specialists. Moreover, truly competent doctors usually communicate with one another for professional "brainstorming" on diagnosing or treating some conditions or may collaborate in research or academic publications.

Gross Negligence

Within the context of medical malpractice, the term "gross negligence" refers to conduct so reckless or mistaken as to render itself virtually obvious to a layman without medical training. Examples include a surgeon amputating the wrong limb or leaving a surgical instrument inside a body cavity of the patient. Some states will permit a person to establish a cause of action for medical malpractice grounded in gross negligence without the need for expert testimony. A minority of states still permit an action for "res ipsa loquitur" ("the thing speaks for itself"), meaning that such an accident or injury to the patient could not have occurred unless there was negligence by the doctor's having control over the patient.

Unauthorized Treatment or Lack of Informed Consent

Virtually all states have recognized, either by express statute or common law, the right to receive information about one's medical condition, the treatment choices, risks associated with the treatments, and prognosis. The information must be in plain language terms that can readily be understood and in sufficient amounts such that a patient is able to make an "informed" decision about his or her health care. If the patient has received this information, any consent to treatment that is given will be presumed to be an "informed consent." A doctor who fails to obtain informed consent for non-emergency treatment may be charged with a civil and/or criminal offense such as a "battery" or an unauthorized touching of the plaintiff's person.

In order to prevail on a charge that a doctor performed a treatment or procedure without "informed consent," the patient must usually show that, had the patient known of the risk or outcome allegedly not disclosed, the patient would not have opted for the treatment or procedure and thus avoided the risk. In other words, the patient must show a harmful consequence to the unauthorized treatment.

Guaranteed Results or Guaranteed Prognosis

Virtually all states prohibit or disallow claims that a doctor promised a certain prognosis of success or guaranteed a certain result if a patient agreed to undergo the suggested treatment, procedure, or therapy. Some states permit such claims for cosmetic surgery only if the guaranteed result is in writing and contained in the form of an enforceable contract.

Breaches of Doctor-Patient Confidentiality

Doctor-patient confidentiality is based upon the general principle that a person seeking medical help or advice should not be hindered or inhibited by fear that his or her medical concerns or conditions will be disclosed to others. There is generally an expectation that the physician will hold that special knowledge in confidence and use it exclusively for the benefit of the patient.

The professional duty of confidentiality covers not only what a patient may reveal to the doctor, but also what a doctor may independently conclude or form an opinion about, based on his or her examination or assessment of the patient. Confidentiality covers all medical records (including x-rays, lab-reports, etc.) as well as communications between patient and doctor and generally includes communications be-tween the patient and other professional staff working with the doctor.

The duty of confidentiality continues even after a patient has stopped seeing or being treated by the doctor. Once a doctor is under a duty of confidentiality, he or she cannot divulge any medical information about patients to third persons without patients' consent. There are limited exceptions to this, including disclosures to state health officials. However, unauthorized disclosure to unauthorized parties may create a cause of action against the doctor.

Vicarious Liability

Finally, a doctor who has been negligent may not be the only defendant in a subsequent lawsuit. A hospital that has retained the doctor on its staff may be vicariously liable for the doctor's negligence under a theory of "respondeat superior" ("let the master answer") that often holds an employer liable for the negligence of its employees. More often, the doctor has "staff privileges" at the hospital, and the hospital will attempt to prove the limited role it plays in directing or supervising the doctor's work. Importantly, many doctors belong to private medical practices, such as limited partnerships or limited liability companies, that also may be vicariously liable for the negligence of their member doctors.

However, a doctor is generally liable for any negligence on the part of his assistants and staff in carrying out his orders or caring for his patients. Likewise, an attending physician is generally liable for any negligence on the part of interns and medical students under the physician's guidance.

Patient's Contributory or Comparative Negligence

As malpractice is a form of negligence, defenses that are generally allowed against general claims of negligence are also viable against claims of malpractice. These might include the following defenses:

  • The patient was also negligent and caused much of his or her own harm
  • The patient failed to mitigate his or her own harm or damage or made them worse
  • The patient gave an informed consent and therefore assumed the risk of any [complication or untoward effect]
  • The alleged harm or damage was an unavoidable "known risk" that occurs without negligence
  • The patient failed to disclose important information to the doctor
  • The patient's prognosis or condition was not worsened by the alleged negligence
  • The patient engaged in some intervening or superceding conduct following the alleged malpractice that broke the chain of events linking the malpractice to the patient's damages or harm

Medical Malpractice Tort Reform

Since 2000, increased tension and conflict between patients, their insurers, the medical community and its insurers, trial lawyers, and victims' rights groups have helped spawn a new movement in addressing medical malpractice: tort reform. In 2005 alone, more than 48 states introduced over 400 bills and modified or amended their laws to reflect the need to effect real change. More than half the states now limit damage awards and many have established limits on attorney fees. Moreover, almost all states now have two year statutes of limitation for standard claims, and have eliminated joint and several liability in malpractice law suits. At the federal level, Congress still struggled with the notion of federal legislation that would preempt all existing state laws governing medical malpractice lawsuits.

State Tort Reform Statutes for Malpractice Actions

State law governs the applicable statute of limitations (time within which individuals must file a lawsuit) for medical malpractice suits, as well as the minimum qualifications of expert witnesses (e.g., whether a non-board-certified general practitioner may testify against a specialist, or vice-versa, etc.). Many states have passed legislation imposing limitations or "caps" on monetary damages recoverable in malpractice suits, but the courts in some of these states have declared the laws unconstitutional.

Each state also has its own laws regarding "wrongful death" claims alleging malpractice as the cause of death. Virtually all states allow longer limitations periods for disability, incompetency, minority, foreign objects left in the body, or fraudulent concealment preventing earlier discovery. One of the most recurring provision coming out of the tort reform movement was the inadmissibility of statements made by medical professionals in sympathy or con-cern, or apologies made by them for treatment rendered, as evidence of fault or malpractice.

ALASKA:SB 67, signed by Governor in 2005, limits noneconomic damages to $250,000. Noneconomic damages for wrongful death or injury over 70% disabling in severe permanent impairment are limited to $400,000. Damages limits are not applicable to intentional misconduct or reckless acts or omissions.

ARIZONA: SB 1036, signed by Governor in 2005, made some changes to expert witness qualifications specific to malpractice actions. Also, apologies and similar gestures by health care providers are not admissible in court as admissions of liability.

ARKANSAS: SB 233, signed by Governor in 2005, creates an insurance policy holder's bill of rights, and amends standards and criteria for medical liability insurance rates, rate administration, rate criteria. Medical liability insurers are to file specific information with Insurance Commissioner, available to public.

CALIFORNIA: SB 231, signed by Governor in 2005, provides that malpractice judgments or settlements over $30,000 must be reported to appropriate licensing board if medical professional does not have liability insurance. Also, must report to Medical Board of indictment, felony conviction, or plea of guilty or no contest of felony or misdemeanor related to medical profession. There will now be an independent commission to study physicians' peer review process. Patients may now access Internet information about physicians relating to status of medical license, current accusations, judgments or arbitration awards, disciplinary action resulting in revocation of privileges, subject to discipline in different state, some specified information may be removed from internet after 10 years. Finally, each complaint filed with Medical Board will be jointly referred to Attorney General and Health Quality Enforcement Section.

CONNECTICUT: SB 1052, signed by Governor in 2005 now requires a "certificate of good faith" to be filed with medical malpractice lawsuits. It also creastes "offer of compromise" guidelines, associated interest rates reduced. Medical liability insurers are to file specified reports to Insurance Commissioner, which are available to public. Medical liability insurers are required to file rate increase request with Insurance Commissioner if over 5%, and insureds may request public hearing. Patients/ public now have access to physician profiles, including adverse licensure actions in other states. Medical liability insurers are to report any claims paid to Insurance Commissioner, available to public through malpractice database. Expressions of sympathy by health care providers are not admissible in court as admission of liability.

DELAWARE: HB 75, signed by Governor in 2005, creates Board of Medical Practice guidelines, including disciplinary regulation and proceedings. The Board is to receive required reports from both physicians and liability insurance providers of any malpractice judgments, settlements or awards. Medical personnel are not liable for civil damages for emergency medical aid rendered without compensation at scene of emergency. Also, HB 133, signed by Governor in 2005, states that all medical negligence claims settled or awarded against health care providers are to be reported to Commissioner by defendant and associated insurance provider within 60 days of final disposition of claim.

FLORIDA: S 938, signed by Governor in 2005, implements "Patients' Right to Know" constitutional amendment (from the 2004 General Election) Creates a right of access to records relating to adverse medical incidents. Disclosure of identity of patients is prohibited, other privacy restrictions. S 940, also signed into law in 2005, implements constitutional amendment requiring that doctors lose medical license in Florida if found guilty of medical malpractice 3 or more times in 5 years (also adopted from the 2004 General Election). Finally, the Department of Health is to carry out disciplinary action against physicians found guilty of medical malpractice.

GEORGIA: SB 3, signed by Governor in 2005, requires affidavits in medical malpractice complaints, but it also ensures better defendant access to applicable patient health information. Physicians' apologies are not admitted in court as admission of liability. There are changes to expert witness qualifications. Malpractice insurers are to report to state any judgment or settlement over $10,000. If there are two guilty verdicts, report any further judgments to Medical Board; three guilty verdicts in 10 years can have license revoked or required additional education. There is limited liability in emergency room situations unless proven gross negligence. There is a revision of joint/several liability. Now a $350,000 noneconomic damage limit; aggregate limit of $1.05 million.

ILLINOIS: SB 475, signed by Governor in 2005, limits noneconomic damages to $500,000 against an individual; $1 million against hospital. New expert witness standards, and there must be certificates of merit to meet same standards. Apologies by doctors and hospitals not permissible in court as admission of liability. There are public hearings for insurance rate change of more than 6% or at request of insureds. Medical liability insurance data disclosure to public will also be made via internet. There are changes to the Medical Disciplinary Board, including an increase of disciplinary fines and extension of statute of limitations for complaints. The law also creates a Patients' Right to Know. Another bill, SJR 3, also adopted, petitions the state Supreme Court to provide for specific medical malpractice recordkeeping, case designation, and reporting.

INDIANA: SB 54, signed by Governor in 2005, provides that licensed medical practitioners are immune from civil liability when voluntarily providing health care services without compensation at free medical clinics or health care facilities.

IOWA: HR 50, adopted in 2005, provides that the legislative Council will establish an interim committee to provide regulatory agencies and legislature with alternatives for alleviating problems with availability and affordability of medical liability insurance.

KANSAS: SB 100, signed by Governor in 2005, provides that risk management programs may be established in nursing and assisted living facilities. Specified requirements include the reporting of incidents, which are then referred for investigation but are not admissible in civil lawsuit action without court determination that reports are relevant to allegations.

LOUISIANA: SB 184, signed by Governor in 2005, provides that medical information gathered by medical or insurance facility to identify cause of adverse outcome are not admissible as court evidence. Also, expressions of sympathy by medical personnel are not admissible in court. HB 425, also signed in 2005, specifies that statutory civil liability immunity in commitment in mental health or substance abuse cases is expanded to include hospitals and hospital personnel. A general civil immunity is granted for good faith services, but there is no immunity for willful negligence or misconduct. HB 485, also signed, provides that specified information gathered by medical liability insurers or state risk management program for the purpose of reducing medical liability claims is to remain confidential.

MAINE: LD 385, limits liability for ambulance services. LD 1378 provides that expression of apology or sympathy by a medical practitioner is not admissible as admission of liability. LD 1472, clarifies that any physician or hospital without liability insurance is considered self-insured for purposes of the Rural Medical Access Program.

MARYLAND: SB 836, signed by Governor in 2005, made technical changes to the Rate Stabilization Account and Medical Assistance Program Account. It also specified requirements for insurers reporting medical liability claims, and the penalties for failing to report. Made other technical changes to streamline the cancellation process for liability insurers (which is subject to review by Insurance Commissioner), and regarding the reporting and regulatory requirements for Medical Mutual Liability Insurance Society of Maryland.

MICHIGAN: HB 4821, signed by Governor in 2005, provides that medical review entities are to receive information relating to appropriateness or quality of health care rendered or qualifications, competence, or performance of health care provider. Any reports of disciplinary action are to go to the Department of Community Health.

MISSISSIPPI: HB 369, signed by Governor in 2005, creates a Medical Malpractice Insurance Availability Plan to provide a market of last resort. It also creates an advisory committee for the Tort Claims Board on medical liability issues.

MISSOURI: HB 393, signed by Governor in 2005, creates new venue rules for medical malpractice actions, including ones for wrongful death. Discovery of defendant's assets is only after court finds in favor of awarding punitive damages. Punitive damages are limited to the greater of $500,000 or 5 times net amount of total judgment. The liability of defendants is several unless there is more than 51% at fault. Noneconomic damages are limited to $350,000. (There was also a repeal of the current annual inflation adjustment.) Courts are required to dismiss any case filed without an affidavit of written opinion of negligence. Physicians providing free health care service in clinics are not civilly liable unless there has been a willful act or omission; and physicians' expressions of sympathy are not admitted in court as admissions of liability. There is now a peer review committee, with spefied procedures for review. The statute of limitations for minors is 2 years from 18th birthday. A related bill, SCR 19, created a Joint Interim Committee on Missouri Health Care Stabilization Fund created to investigate establishment and implementation of fund, feasibility of paying damages to claim-ants (the primary objective being to assure reasonable medical liability coverage).

MONTANA: SB 21, signed by Governor in 2005, relates to damages awarded based on "reduced chance of recovery." SB 316, specifies that reports from medical liability insurers are to be sent annually to Insurance Commissioner. HB 24 provides that a medical personnel's statement expressing apology or sympathy is not admissible in court as admission of liability. HB 25, states that a health care provider is not liable for employee's act or omission that occurred when employee was not under the jurisdiction of health care provider. A related bill, HB 26, states that a health care provider is not liable for any act or omission committed by someone who purports to be a member of that organization. HB 64 establishes new qualifications for expert witnesses in medical malpractice cases. HB 138 clarifies that a Board of Medical Examiners is to establish disciplinary screening panels to oversee rehabilitation programs for medical personnel. HB 254 makes medical practitioners guilty of a civil offense and fined up to $500 per offense for writing illegible prescriptions. Complaints are to be filed with licensure board. HB 331 provides that the Insurance Commissioner is to conduct market review of malpractice insurers in Montana; based on findings, is to create market assistance plan or joint underwriting association. Bill also contained specifications for potential market assistance plan and joint underwriting association, and specified limits for claimants under policies, underwriting, and reinsurance.

NEVADA: AB 208, signed by Governor in 2005, provides that applicants for medical licenses are required to submit to criminal background check, as well as physicians against whom any disciplinary action is initiated. There are now expanded grounds for initiating disciplinary proceedings against medical personnel. Criminal justice agencies are = to provide criminal histories to Board of Medical Examiners.

NEW HAMPSHIRE: SB 57, signed by Governor in 2005, establishes a cmmission to study ways to alleviate medical malpractice premiums for high risk specialties, but purview does not include examination of civil justice system specific to malpractice claims. SB 214, creates panels for medical injury claims, including conditions for confidentiality and release of information to public, also, the dreation of a panel and insurance oversight committee to study medical liability insurance rates and effectiveness of mandatory panel process. Annual reports to Insurance Commissioner are now required from courts. The current hearing panels for medical malpractice complaints are repealed. HB 514 creates a 5-year health care quality assurance commission to provide information sharing among health care providers about adverse outcomes and prevention strategies. The information submitted, proceedings and deliberation results are to be held confidential. HB 584 declares that statements or actions from medical personnel expressing sympathy relating to personal injury are not admissible as admission of liability, and dos not apply to statements of fault.

NEW JERSEY: S 1804, signed by Governor in 2005, now requires medical facilities to report disciplinary action taken by any facility against any health care professional relating to incompetence or professional misconduct. All health care professionals are to undergo criminal history background check when renewing medical license. There will be reporting of health care professionals to state and employers when specified as necessary. Employers of health care professionals are to disclose job performance upon inquiry of another employer.

NEW MEXICO: SM 7, adopted in 2005, creates New Mexico Health Policy Commission and Insurance Division of Public Regulation Commission to convene task force on medical liability insurance; review relevant state statutes, make recommendations to legislature and governor.

NORTH DAKOTA: SB 2199, signed by Governor in 2005, provides that a plaintiff must submit an expert opinion affidavit to individual medical personnel or facility named as defendant within 3 months of commencement of malpractice action.

OREGON: SB 443, signed by Governor in 2005, allows Board of Medical Examiners to require health care providers to take national licensing exam under circumstances of volunteering in charitable health clinics.

SOUTH CAROLINA: S 83, signed by Governor in 2005, limits Noneconomic damages to $350,000, with exceptions specified. Also, new standards for expert witnesses and mandatory mediation for malpractice actions (binding arbitration are permitted). Provisions relating to Joint Underwriting Association and Patients Compensation Fund. Malpractice insurance providers are required to maintain coverage for licensed health care providers. The bill also requires a notice to all locations where health care provider has a medical license to practice, when the South Carolina medical license is suspended or revoked. If there is any percentage of plaintiff fault in a malpractice action, it will not cause reduction of recoverable damages. A related bill, H 3108, covered provisions relating to investigations of complaints against physicians by Medical Disciplinary Commission.

SOUTH DAKOTA: HB 1104, signed by Governor in 2005, provides that damages are limited that may be awarded in malpractice action against a podiatrist. HB 1148 makes statements and actions expressing apology or sympathy made by health care providers admissible as admission of liability.

TENNESSEE: SB 212, signed by Governor in 2005, declares that medical practitioners voluntarily and without compensation providing health care services within scope of state license at health clinics receive civil immunity for rendered services, unless act or omission was gross negligence or willful misconduct.

UTAH: SB 83, signed by Governor in 2005, declares that medical malpractice actions may not be brought against health care providers due to consequences resulting from refusal of child's parent or guardian to consent to recommended treatment.

VIRGINIA: SB 1173, HB 2659 (identical bills) were both signed by Governor in 2005. They require that an expert witness certification of deviation from care standard to be filed before malpractice lawsuit can be filed. Moreover, physician's expression of sympathy is not admissible in court as admission of liability. Admissible evidence is now expanded, to include observations, evaluations and histories in treatment applicable to lawsuit, which now may be disclosed; the definition of "malpractice" is limited to tort or breach of contract; and malpractice liability insurers are required to submit annual reports to State Corporation Commission regarding claims made against medical personnel. Finally, the Board of Medicine is to assess competency of medical personnel with three malpractice claim payments within ten years. SB 1323 and HB 1505, also identical bills, provides a Birth-Related Neurological Injury Compensation Fund definition such that when infant weighs less than 1800 grams at birth or is at less than 32 weeks of gestation, there will be a rebuttable presumption that the alleged injury is a result of premature birth. HB 1556 states that the Board of Medicine is required to inform licensees about immunity for services to patients of free clinics. HB 2410 provide that Liability insurers are required to provide 90-day notice of policy cancellation or non-renewal, or premium increase of more than 25% for malpractice insurance.

WEST VIRGINIA: HB 2011, signed by Governor in 2005, states that Health care providers are not liable for personal injury caused by prescription drug or medical device used in accordance with FDA regulations. HB 3174, also signed by Governor, makes any expression made by a health care provider of apology or sympathy is not admissible as an admission of liability.

WYOMING: SF 0078, signed by Governor in 2005, requires additional advance notice of medical liability insurance policy cancellation or premium increase. A public hearing is required if insurer requests to raise premium rate by 30% or more. SF 0088 requires additional specified information on medical malpractice claims to be reported. HB 0083 repeals the current Medical Review Panel and recreates a panel according to constitutional amendment adopted in the 2004 general election.

Additionally, a few state court rulings addressed some of the new statutes: In DeWeese v. Weaver, a Pennsylvania Commonwealth Court declared that separation of joint and several liability was unconstitutional based on the germane standard of legislation enacted in 2002. In Ferndon v. Wisconsin, the Wisconsin Supreme Court held that noneconomic damages in medical injury cases were unconstitutional.

Additional Resources

Law for Dummies Ventura, John, IDG Books Worldwide, Inc., 1996.

Medical Malpractice Harney, David M., The Michie Company:, 1993. Excerpt available at

"Medical Malpractice" Plymale & Associates. Available at

Law for Dummies. John Ventura. IDG Books Worldwide, Inc. 1996.

"Summary of Medical Malpractice Law: Index of States." McCullough, Campbell & Lane, 2001. Available at

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