LEGAL ISSUES
physician experts in malpractice cases against EPs. Medical malpractice
involves a professional standard. The expert answers the question above about
standard of care. The expert is also usually asked about the causation element—
did the claimed negligence cause the harm?
STANDARD OFPROOF
Judges instruct juries that, to find for the plaintiff, they must conclude that
there was duty, breach of duty, damages, and causation “more likely than
not,” ie, preponderance of the evidence. This is a significantly lowerthreshold
than the criminal standard of “beyond a reasonable doubt.”
COMPENSATION
Juries award the plaintiff damages, which are the amount of the verdict. The
amount of damages is intended to make the victim of malpractice whole. Lost
income and medical bills are “actual” damages; pain and suffering compensa-
tion, and punitive damages are “noneconomic” damages. Lawyers estimate
potential verdict amounts based on all involved factors, but sometimes use a
rule of thumb that applies a multiplier to the more easily demonstrated real
damages.
Potential damages ~= 5 ×actual damagesIn addition to actual damages, a plaintiff may be entitled to punitive damages,
which may be awarded if the jury feels that the conduct of the defendant was
particularly loathsome and unprofessional. In usual cases, however, the ver-
dict should be sufficient for the plaintiff to break even. The plaintiff should
never come out ahead of where she would have been had the malpractice not
occurred. Tort reform efforts often seek caps on the possible amount of
noneconomic damages.
Insurance
There are two types of insurance policies:
■ Occurrence: Coverage for errors or omissions in a case occurring during
the life of the policy, no matter when the suit is eventually filed
■ Claims made: Coverage only if there is a claim made (or, sometimes, a
report of an incident) during the coverage period of that policy or renewal
of that policy
The latter of these is cheaper and has become much more common. If an
emergency physician leaves a group, he should make sure that renewals will
include him, or that the group will buy a “tail” covering later filed suits.
Effectively the tail converts a claims made into an occurrence policy.
Right to Approve Settlement. An anxious defendant can always demand that
the insurer offer policy limits to any plaintiff, but most policies today do not
provide for any control by the physician or group policyholders. Insurers want
to be able to make economic choices about settlement, free of the visceral
and professional concerns driving physician defendants.
Security of Coverage. Large commercial insurers have moved out of the mal-
practice market. Many malpractice companies have failed. The cheapest
The burden of proof for a
malpractice case is the
preponderance of evidence.