Medical malpractice claims arise out of medical mistakes or misconduct by a health care professional that results in injury to the patient. It is a negligence claim whereby the individual making the claim has to prove a negligence case. This requires that the claimant must show that there was a duty owed, breach of that duty, and that the breach proximately caused the injury that was ultimately suffered. Damages are the last piece of the negligence pie and this is can be shown in terms of lost wages, additional medical expenses and/or pain and suffering. Oftentimes, medical malpractice cases can take a long time to resolve.
The standard for doctors and other medical professional is ordinary reasonable care. This is the standard of care that is required in most states. Although, some states have expanded this standard with the hope of decreasing the number of malpractice cases on the books and moving away from defensive medicine. This is where doctors go above and beyond unnecessarily sometimes so that they are not sued.
Gross negligence is the practicing standard in some states and this requires that the doctor consciously disregarded protocols and procedures knowing that this act may harm the patient. A change in the standard has not done much to quiet defensive medicine tactics.
Pennsylvania is one of the states where practicing defensive medicine is alive and well. Doctors do not want to be sued, which is why defensive medicine is so prevalent. This leads to exorbitant health care costs specifically emergency room visits. Patients have the right to sue for medical malpractice where appropriate and shouldn't be deterred from doing so if they feel they have been wronged. However, there is a problem when health care is adversely impacted because medical professionals are making decisions out of fear of a lawsuit.
Source: insurancejournal.com, "Tougher State Malpractice Laws May Not Reduce Defensive Medicine," Oct. 27, 2014