Patients often file lawsuits against physicians for errors they caused in diagnosis or treatment.  A plaintiff needs to prove the following distinct elements to prevail on a claim of medical malpractice. The elements include a duty of care, breach of duty, causation and damages (Jatoi, & Kaufmann, 2010). Besides, if any of the mentioned elements miss, the patient will not prevail. First, the doctor owes the patient a duty of care. The law requires the healthcare provider to deliver healthcare services to the patient per the standard of care. Individuals should understand that the standard of care is a legal concept and not a clinical concept. However, before a duty of care arises, the patient must prove that there existed a legal relationship between him/her and the physician (Jatoi, & Kaufmann, 2010). Once the relationship between the two exists, the physician becomes legally responsible for his or her obligations.

Second, breach of duty involves a situation when the physician provides healthcare services that are below the standard of care. In this situation, the physician is negligent, and the patient must prove that the physician did not meet the standards of a profession. Third, the plaintiff must prove proximate cause. The patient must prove that any damage occurred to him/her were a direct result of the physician’s breach of duty. The physician will be held accountable if the patient’s injury was as a result of his/her negligence. However, if the injury were as a result of an intervening act, then the physician would not be held responsible. Lastly, the plaintiff must prove damages. The patient must prove that he/she suffered adverse injuries. The legal injuries that are considered are physical, emotional or financial. A professional malpractice is an act by the physician that does not meet the standard of care hence resulting in injury to the patient.

The standard negligence claim is based on the notion that a physician owes his/her patient a duty of care. Therefore, a claim is filed when the physician does not treat the patient per the medical standards of care. Also, the physician caused undue harm to the patient. In tort law harm caused by negligence is due to carelessness. On the other hand, malpractice claims entail lawsuits filed by the patient against a doctor or physician for errors in treatment or diagnosis.

The physician can use the following options to defend against a claim of medical malpractice. First, the physician can defend him/herself if one of the four essential elements of negligence is missing. The plaintiff cannot approve the claim if any of duty of care, breach of care, damages and causation is absent. Second, the physician can use the Good Samaritan law to defend him/herself. The law protects individuals who provide emergency services to patients whereby they do not have a legal obligation to carry out the operations. The physician will be protected by most jurisdictions even if negligent. Third, the physician can enter into an agreement with patients to exempt him/her from liability. The healthcare facility or the physician can enter into an agreement with the patient and offer him/her medical services at reduced price on the terms that the physician will be removed from liability for ordinary negligence. Fourth, the health care provider can use the arbitration agreement. The physician or the organization can privately engage the plaintiff to arbitrate a medical malpractice claim. The agreement helps the physician to avoid litigation.

Tort reforms can be explained as the proposed changes made by the civil justice system that are meant to reduce directly tort litigations. The reform places a limit on the amount of pain and suffering a jury may award a person. The arguments for Tort reforms include the following. First, damages awards are extremely high in most cases of medical malpractice, and this increases the doctor’s medical malpractice insurance premium. Through the health care system, the high cost of the insurance premiums will be passed on to individuals. Therefore, physicians who pay high malpractice premiums will charge more for the services. The tort reforms will help to cap medical malpractice damages and pass on the savings from the low malpractice premiums to the consumers hence lowering the cost of health care services.

Second, sometimes physicians may be subjected and influenced by the risks due to civil lawsuits and the possibility of potential for high damages. Therefore, they will start making medical decisions not only to benefit the patient but to avoid litigation. For example, the physician may often recommend cesarean section since it will help him/her reduce potential liability. The physician will claim that he/she did everything possible for the patient and also used the entire medical tools that were at disposal. In so doing, the doctor would be able to fix the medico-legal system (Kenney, 2009). Third, due to the high medical malpractice premiums and tort liability, there is a possibility of doctors’ shortage in certain fields. Precisely, the field of obstetrics will be affected since the high damages awards are risks. For example, it is expected the number of doctors’ shortage to be around 63,000 in the year 2015 (Suszek, n.d). Therefore, it will be ideal if the tort reforms are implemented.

The arguments against tort reforms include the following. First, the reforms are unfair to the patients (Doroshow, 2009). It is unfair since the patient will be less than fully compensated for the damage or suffering he/she has gone through. For example, Colin Gourley endured a terrible complication at birth due to the physician’s negligence. However, he developed cerebral palsy and the amount of time he spent in the wheelchair affected the growth of his bone. According to the ruling by the jury, he was supposed to be compensated an amount of $ 5.625 million for his medical care and suffering (Doroshow, 2009). Nebraska’s law that entails a cap of damages reduced the figures to a fraction of what he needs. Due to such action, Colin relies on the assistance from the state, and also the family intervened to pay for his care.

Second, tort reforms violate constitutional rights. A jury has the responsibility to hear cases, make decisions and provide a verdict on the damages. However, the tort damage caps limit the powers given to the jury. Perhaps it might influence the powers of the jury in an inappropriate way.

References

Doroshow, J. (2009, Aug. 9). Medical malpractice tort reforms-we are already suffering and don’t need more. Retrieved from http://www.huffingtonpost.com/joanne-doroshow/medical-malpractice-tort_b_350573.html.

Jatoi, I., & Kaufmann, M. (2010). Management of breast diseases. Heidelberg: Springer.

Kenney, K. (2009, Aug. 9). Fixing health care reforms requires tort reforms. Retrieved from http://www.npr.org/sections/money/2009/08/fixing_health_care_requires_to.html

Suszek, A. (n.d). Medical malpractice: The debate over medical malpractice tort reform. Retrieved from http://www.medicalmalpractice.com/resources/medical-malpractice/medical-negligence-lawsuits/the-debate-over-medical-malpractice-

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