Professional Malpractice

When a person becomes ill, they go to a doctor. Someone seeking legal advice goes to a

lawyer. A person in search of an architect, engineer, accountant or member of the clergy looks

for a professional in that specific field, to help them solve their situation. It is important to trust

these professionals since we typically need them at a vulnerable time in our life. Unfortunately,

there may come a time in this relationship when the professional becomes negligent and fails

to perform his job in the manner generally associated with his profession. If this negligence

causes an injury, professional malpractice has occurred. Malpractice is any action or behavior on the part of a professional who does not meet

the principles of his profession. Our textbook defines malpractice as professional misconduct or

the failure to exercise the requisite degree of skill as a professional1. Although malpractice

can occur in many disciplines, the medical and legal professions are the most self-evident. Medical malpractice is the carelessness of a doctor or medical facility in the treatment of

a patient and as a result of this negligence the patient is injured or dies. According to the Journal

of the American Medical Association (JAMA), medical malpractice follows only heart disease

and cancer as a leading cause of death in the United States. More than 225,000 lives are claimed

each year due to this medical neglect2.

To set the foundation for medical malpractice, the tort of negligence must be established.

Four elements are necessary when proving a malpractice claim; a duty of care, a breach of duty,

a proximate cause, and damages. A duty of care relationship must be demonstrated between

the health care provider and the patient. This relationship usually begins once the doctor

initiates the treatment. The doctor now has a duty to use the established standards of care with

his patient. The second element, a breach of duty, is probably the most difficult element to

prove. The plaintiff must show the healthcare provider failed to conform to the required level

of care and the treatment administered was below the normal standard. If a doctor performs a

stapendectomy on the wrong ear, it would be easy to make a case for malpractice. Normally,

most cases are not this obvious and a physician of this caliber would not make this kind

of error. For this reason, an expert medical witnesses is called upon to testify that in his

professional opinion, the doctor committed a breach of duty. This must be done no later than

one hundred and twenty days after filing a medical negligence claim. The next element is

proximate cause. Proximate cause is the event that caused the injury. In other words, whatever

the doctor did or did not do caused the injury. However, a surgeon might perform the perfect

surgery or a doctor might give excellent medical treatment and still the patient might

experience complications. These complications are not necessarily grounds for malpractice.

Finally, the plaintiff must prove he suffered damages as a result of his injury. Only then, will

he be successful in his malpractice claim.

There are two categories of damages recoverable in a malpractice claim; compensatory

and punitive. Compensatory damages include money paid for medical bills, medical equipment,

loss of wages, pain and suffering and disability. Punitive damages may be awarded if the patient

can prove the health care provider acted willfully, maliciously, or fraudulently. In Texas, the

amount of the judgment a plaintiff can receive for winning a malpractice case for a non-

economic loss is capped at $750,0003.

In 2003, the Texas Legislature passed amendments to re-codify the Medical Liability and

Insurance Improvement Act (MLIIA) in Chapter 74 of the Texas Civil Practice & Remedies

Code. In regards to the statute of limitations, a person has two years from the date