What is medical malpractice?
Medical malpractice is harm a doctor, nurse, hospital or other provider causes by failing to meet the standard of care, meaning the care a reasonably careful professional in the same field would give in similar circumstances. A bad outcome alone is not malpractice; medicine carries risk, and the question is whether the provider's conduct fell below that standard.
In the United States malpractice is a branch of negligence law, decided mostly under state law. A patient generally must prove four elements: a duty arising from the provider-patient relationship, a breach of the standard of care, causation linking the breach to the injury, and damages. The general rules of injury claims are covered in personal injury law, and harm from defective drugs or devices in product liability.
- Meaning
- Harm caused by a provider's failure to meet the standard of care
- Elements
- Duty, breach, causation, damages
- Informed consent
- Schloendorff (1914), Canterbury v. Spence (1972)
- Damage caps
- Set by many states, e.g. California's MICRA (1975)
A failed surgery is not automatically malpractice. The heart of a malpractice claim is whether the provider did what a careful professional would have done, and whether that failure caused the harm.
Standard of care and informed consent
- Standard of care: usually proved through expert testimony about what competent providers do in diagnosis, testing, medication, surgery and follow-up. Nurses have their own duties, such as checking a drug before giving it and questioning an order that is plainly wrong.
- Informed consent: in Schloendorff v. Society of New York Hospital (1914), Judge Benjamin Cardozo wrote that every human being of adult years and sound mind has a right to determine what shall be done with his own body. Canterbury v. Spence (D.C. Cir. 1972) then held that doctors must disclose the risks and alternatives a reasonable patient would want to know.
- Confidentiality: providers must keep patient information private; in the U.S. federal HIPAA rules govern health information, and Korea's Medical Service Act bans disclosure, a duty its Supreme Court held in 2018 survives the patient's death.
- Causation: even a clear breach does not create liability unless it caused the injury, which is often the hardest element to prove.
For Korean students, eight Korean court cases on nurses' duties of care, consent, confidentiality and verification are summarized in Legal Duties of Nurses in Korea: Eight Court Cases on Duty of Care, Informed Consent, Confidentiality and the Duty to Verify. The debate over mandatory CCTV in Korean operating rooms is in The Debate over Mandatory CCTV in Operating Rooms in Korea: Arguments Against, Privacy and Wiretap Issues, and the Duty to Explain, and a study of clinical nurses' bioethics awareness is in 임상간호사의 생명의료윤리의식과 직무만족도, 간호업무수행을 분석한 학술논문 정리: 표집과 도구, 결과 해설, 제언.
| United States | Korea | |
|---|---|---|
| Legal basis | State negligence law | Civil Act contract and tort liability |
| Informed consent | Reasonable-patient or professional standard, by state | Based on self-determination under Constitution Article 10 |
| Before suing | Some states require expert affidavits or review panels | Optional mediation or arbitration |
| Damage limits | Many states cap non-economic damages | No statutory cap |
Damage caps and dispute resolution
Many states limit non-economic damages such as pain and suffering. California's Medical Injury Compensation Reform Act (MICRA) of 1975 set a $250,000 cap, and a 2022 law, AB 35, raised it to $350,000 for injury cases starting January 1, 2023, with further annual increases. Supporters say caps keep insurance affordable; critics say they hurt the most seriously injured patients.
Korea takes a different route. A 2011 act created the Korea Medical Dispute Mediation and Arbitration Agency, which opened in April 2012, and since a 2016 amendment took effect on November 30, 2016, mediation starts automatically in serious cases such as death, even without the hospital's consent. Out-of-court options are compared in arbitration, and the privacy side of medical records in the right to privacy.
If you suspect malpractice, get your medical records first. With the records in hand, identify which duty was not met and how it caused the harm, then check your state's deadline and any pre-suit requirements before choosing a path.
- Is a bad result always malpractice?
- No. If the provider met the standard of care, a bad outcome is not malpractice. The patient must show a breach that caused the harm.
- What is informed consent?
- The patient's agreement to treatment after being told the material risks and alternatives. Treating without it can create liability even if the treatment was performed well.
- Are malpractice damages capped?
- It depends on the state. California, for example, caps non-economic damages under MICRA, while some states have no cap.
References
- Schloendorff v. Society of New York Hospital, 211 N.Y. 125 (1914). Justia
- Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). LSU Law Center
- Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes. Korea Law Information Center