Blog Series, Part 4: What is a Tort?

This blog is part of a series - for part 3, click here.

Earlier in this series, we discussed the nuts and bolts of negligence law. Generally, the law imposes a duty of reasonable care in our day-to-day activities. Negligence is a breach of that duty. If someone is injured by another’s negligence, the law of negligence provides a means of compensating for those injuries.

Medical malpractice is a subset of negligence. Especially in the last 25 years, the subject of medical malpractice has become a politically charged one. In most states, there are now special rules that must be followed in order for a medical malpractice case to be filed and prosecuted. These rules are complex and are being constantly evaluated and revised. This blog is not meant to summarize the law of medical malpractice, but to give a broad overview of how these rules make medical malpractice cases unique.

The one thing is that most states require some kind of screening before a medical malpractice case can be filed. Unlike an ordinary negligence case, someone intending to bring a case for medical malpractice must certify to the court, usually by affidavit, that a qualified expert has reviewed the case and found that it probably has merit. This process is followed in West Virginia, Ohio, and Pennsylvania.

Medical malpractice cases also follow special rules for determining whether or not a physician is negligent. The party making the claim must prove through expert testimony that the malpracticing physician violated the applicable standard of care and that his violation actually caused the injury. Experts play a vital role in medical malpractice cases. The expert must satisfy a strict set of requirements before he can testify. For example, the expert must practice in the same field as the malpracticing physician. Depending on the state, it may also be necessary for the expert to be board-certified and/or for the expert to show that a certain percentage of his professional time is devoted to seeing patients.

Because of the complex nature of medical malpractice cases, it is also common for states for require an early pretrial conference. This helps to ensure that the court is managing the case effectively. Typically, there are also timelines that have to be met so the case progresses to trial. There may also be provisions requiring the parties to participate in mediation in an effort to resolve the case without the necessity of a trial.

Next time we’ll take a look at “tort reform.”