State Medical Malpractice Laws Explained Briefly
The laws surrounding medical malpractice are enacted and regulated by the individual states in which the misconduct or alleged incident of medical negligence occurs. However, in certain claims cases upon the advice of legal counsel, filing in a federal venue in the event of a diversity of citizenship, claim damages in excess of certain dollar amounts, and claims cases involving the federal government as a named defendant or vicariously liable party. However, one additional factor that may place a medical malpractice case into a federal venue might also include prescription drug or medical product defects, which have incurred mass liability due to the mass marketing and use of these products. In these cases, claimants harmed by medical negligence comparable to hundreds, potentially thousands of other plaintiffs can recover damages efficiently with pre-proven grounds and causes of action in many instances, if a claimant is not a class representative plaintiff.
Jurisdiction Will Dictate the Procedural Path and Viability of a Medical Malpractice Lawsuit
Those who are considering filing a malpractice lawsuit on the grounds of medical negligence causing damages must take time to absorb the processes by which state-specific jurisdiction will define many of the parameters of a given medical malpractice lawsuit.
Variations by statute in essential areas of a medical malpractice cases depending on the state must include considerations of the following, typically state-specific elements of malpractice filings, including:
- Statutes of limitations on filing a claims case in a timely manner will wildly vary from state to state, with claims being made against state, federal, or municipal entities incurring statutes of limitations periods in most states of only a few months. However, variations on the applicable statute of limitation, statutes of repose, and delayed discovery of harms exemptions will differ from state to state.
- Statutory damage caps are applicable in about half of state jurisdictions, with significant variations between states imposing caps on medical malpractice damages awards in terms of the extent of the caps imposed, including whether economic, non-economic, and punitive damages are permissible under medical negligence causes of action in given state jurisdiction
- Requirements to file suit, including whether expert testimony prior to filing or whether arbitration or some other alternative dispute resolution forum is mandated under state law will also vary by venue and greatly impact the path of a proposed medical malpractice lawsuit
- State specific laws on joint and several liabilities, as well as whether vicarious liability statutes or case precedent exists, will greatly depend on the state jurisdiction in which a claims case is filed, and in turn, influence the overall legal strategy of a malpractice lawsuit.
A litany of other case and state-specific factors will certainly play a decisive role in the approach to a single, individual medical malpractice lawsuit, and as such, having legal counsel in the jurisdiction in which a claims case cause of action occurred originally is highly advisable, as this state jurisdiction is most likely the ultimate legal venue of any medical malpractice lawsuit.
Generalizable Similarities between States Exist Regarding Medical Malpractice Lawsuits
In all states, certain basic legal barriers must be met by any plaintiff seeking to present a viable and successful medical malpractice lawsuit including:
- To recover damages, regardless of the state, the patient has to be able to prove several essential legal elements, including first the existence of a patient and provider relationship, in which a medical professional owed a professional duty of care to the patient
- Second, the claims case must present a viable argument with supporting evidence and medical expert testimony that proves beyond a preponderance of the evidence that the routine medical standard of care towards a patient was violated, or that medical negligence had in fact occurred
- Third, all viable medical malpractice lawsuits must prove beyond a preponderance of the evidence that the negligent actions of a given medical professional were the proximate or direct cause of damages sustained by the patient, who otherwise would not have incurred these damages had the negligent conduct by the medical professional not occurred
- Fourth, patients making viable medical malpractice claims must also prove damages, or in short, tabulate and estimate the total costs and losses associated with a given negligent act and the ensuing medical, psychological, and financial fallout brought upon a patient sustaining iatrogenic injuries or damages
However, again, state specific factors such as liability doctrines applied by a given state will dictate the viability of a claims case that presents potential complications relating to comparative or contributory liability.
How Do Medical Malpractice Laws Differ Between States by The Numbers?
To understand how medical malpractice laws differ, claimants should seek to obtain a broad view of national scene in terms of medical malpractice laws and statutes, specifically on how medical malpractice laws in 2016 will vary between states:
- The damage cap, which is essentially the limit of the award in the event the patient wins his or her case. Currently, there are 33 states that have a cap, and there are 17 that do not. Two states (Minnesota and Connecticut) will allow the court to review the award, but they do not have a specific set limit. Some states, such as Colorado and Virginia, set a hard cap on a number of damages that can be recovered for both economic damages such as hospital bills and noneconomic damages such as pain and suffering. It is more common for states to enact caps of several hundred thousand dollars on noneconomic damages as these are more difficult to calculate. Caps on noneconomic damages are as low as $250,000 in many states, but can be as high as $1 million in Tennessee in the case of a catastrophic injury.
- The applicable statute of limitation, which determines the amount of time you have to file your claim after the incident, and it can vary widely by state. In some states, the statute of limitations depends on the type of injury. Some states also have longer statutes of limitations for cases involving minors. When the statute begins to run depends on when the damage was discovered in individual states. However, some states also have statutes of repose, which are flat statutes of limitations. If medical malpractice is discovered after the statute of repose has run, a claim will be barred by the court.
- Multi-party liability, or in the event more than one party can be held liable for the malpractice, the injured party can collect damages from one, several, or all of the parties named in the suit and found associated or vicariously liable for damages sustained by the patient under joint and several liability laws permitted under 26 state jurisdictions, with modified and regular liability regimes being the most commonly employed in these 26 state medical malpractice statutes as of 2016
- Modified comparative negligence, which is a doctrine followed by 33 states, albeit under varying forms depending on the jurisdiction. For example, under states adhering to a modified comparative fault rule, a plaintiff cannot recover if he or she is found to be more responsible for an injury the defendants. And exactly how liable the plaintiff must be and how it affects recovery varies slightly among the states.
- Medical expert testimony, which is required in claims cases filed in 32 states, as well as Guam, entails provisions in place that require the expert witnesses meet minimum qualifications when testifying in medical malpractice cases. All jurisdictions except for Puerto Rico, New York, and New Mexico have provisions in place regarding medical and peer review panels.
- Periodic payments are allowed, and sometimes required, in 30 jurisdictions when it comes to the payment of damages. In addition, 28 states have placed limitations on attorney fees and 12 jurisdictions have sliding fee schedules for attorneys who take these cases. There are 13 states that allow injury funds or patient compensation funds.
- Mandatory arbitration or mediation prior to filing a medical malpractice lawsuit may be required, while a similar number of states outright constitutionally ban such mandates relating to negligence or tort- related claims, whether involving medical negligence or not. Currently, 17 different state jurisdictions present claimants with the task of exhausting external dispute resolution mechanisms prior to filing suit.