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TRIAL OF CLAIMS IN THE U.S. Although the term is most often associated with physicians, medical malpractice includes the acts and omissions of any medical care provider, including dentists, nurses, and therapists. Relying on Vicarious Liability , claims may also be brought against hospitals, clinics, or medical corporations for the mistakes of their employees. The Plaintiff must prove three things: #That the provider breached his/her Duty Of Care towards the patient, i.e. failed to do something that a reasonably prudent provider in the same field would have done under the same or similar circumstances, or did something that no reasonably prudent provider in the same field would have done under the same or similar circumstances. #That this breach caused loss or damage. #That it is fair and reasonable to hold the defendant liable to pay Damages for the harm caused by the malpractice. Since most medical providers have malpractice insurance, a case in the U.S. usually begins as an insurance claim, made by the Attorney for the patient. If Liability is admitted and Damages can be agreed, the case will be settled early to reduce the amount of costs payable. Otherwise, the plaintiff will file suit in the appropriate court. Between the filing of suit and the trial, the attorneys for the parties will engage in Discovery , which includes Interrogatories , requests for documents, and Deposition s. At trial, the plaintiff has the Burden Of Proof. Expert Witnesses are usually required to testify as to practice standards, while lay witnesses must confine their testimony to facts they perceived with their own senses. To be qualified as an expert, a person must have a sufficient level of education, training, and experience in the relevant field, and it must be shown that their testimony will assist the Judge and/or Jury in determining a contested issue. The law requires that lay jurors or judges, being untrained in medicine, must accept expert evidence as to whether the provider deviated from the requisite standards but since the plaintiff and the defendant will usually each hire their own experts, there will be conflicting opinions. The plaintiff's Damages may include compensatory and punitive damages. Compensatory damages include economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic claims include damages for physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability, pain and suffering and emotional distress. Punitive damages are rarely awarded in malpractice cases {Link without Title} and are subject to strict controls. The factfinder must assess the economic, non-economic and punitive damages. The factfinder will render a Verdict to the winning party. The verdict is then reduced to the Judgment of the court. The losing party may move for a new trial. A plaintiff who is dissatisfied by a small judgment may move for ''additur''. A defendant who is dissatisfied with a large judgment may move for ''remittitur''. However, judges will only rarely disturb the verdict of a jury. Either side may take an Appeal from the judgment, but appeals more often than not affirm the judgment of the trial courts. POLITICAL CONTROVERSY IN THE U.S. History of the insurance debate Insurance companies set a contract with each medical practice for a calendar year. According to the contract, doctors pay a set “rate” for the entire year. In exchange for paying the set rate for each year, the insurance company will provide a legal defense and Indemnification for losses to the doctor or the practice if they are sued. According to the Insurance Information Institute, early in the 1970s, many insurance companies left the business due to the “rising claims and inadequate rates.” Responding to the lack of insurers, many doctor-owned malpractice insurance companies were established to provide affordable coverage. These companies had not experienced deficits and we(re) initially able to charge low rates. As time passed, these doctor-owned insurance companies constantly lost money on patient claims and were forced to increase the rates. Today, nearly fifty percent of medical malpractice insurance companies are doctor-owned and operated.[http://www.iii.org/media/hottopics/insurance/medicalmal/] Insurance rates have continued to increase faster than the rate of inflation, though less rapidly in states that have passed found that the CJD study was "critically flawed" and that, once those flaws were fixed, there is "no evidence that medical malpractice insurance is overpriced."[http://www.hcla.org/HoytPowell.pdf] Economist s have recently studied several questions central to the medical malpractice debate. While it has been claimed that excessive jury awards are responsible for increases in malpractice insurance rates, verdicts constitute only 4% of the medical malpractice payouts, with insurance company settlements comprising 96% of the payouts. These statistics acknowledge insurance companies rarely go to trial in cases where large penalties may be incurred. However, in clear cases of spurious malpractice claims, companies refuse to settle and instead doctors' suffer penalties of lost work and emotional distress. The same researchers found that the increases in payouts have been consistent with increases in the costs of health care.[http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.240 However, the 2003 GAO reports finds that "Multiple factors have contributed to the recent increases in medical malpractice premium rates in the seven states we analyzed. First, since 1998 insurers' losses on medical malpractice claims have increased rapidly in some states. For example, in MS, the amount insurers paid annually on medical malpractice claims or paid losses, increased by approximately 142 percent from 1998 to 2001 after adjusting for inflation. We found that the increased losses appeared to be the greatest contributor to increased premium rates." [http://www.gao.gov/new.items/d03836.pdf] Today There are various bills that have been proposed in the U.S. Congress that would Cap Non-economic Damages in medical malpractice cases at $250,000, and some proposals have included provisions permitting states to pass legislation that would override such a cap. The Congressional Budget Office estimates that the bill will reduce medical malpractice insurance rates in states that do not have caps by 25-30%. Some within the medical profession, insurance industries, and numerous lawyers and economists argue that the current American medical malpractice litigation system increases the cost of health care and threatens access to health care for all Americans. Supporters of Tort Reform contend that studies show that very few medical liability lawsuits stem from what they call true Malpractice that very few cases of actual malpractice end up in suits, and that malpractice verdicts are just as likely to punish innocent doctors as wrongdoers. They argue that the cost of Defensive Medicine , in which physicians order tests or treatments or hospitalizations for medico-legal rather than clinical reasons, is as large as $50 billion per year, money that could be better used to improve health care elsewhere. The American Medical Association argues that excessive malpractice liability deters many doctors from practicing, and that the problem is especially acute for Obstetrician s and Neurosurgeon s. In response, some consumer groups, patient rights organizations and lawyers who handle medical malpractice claims argue that the quality of health care in the of 137.5, paying out $1.375 in medical malpractice defense costs, judgments, and settlements for every dollar collected in premiums. Herbert's analysis was otherwise heavily criticized by supporters of tort reform as inaccurate in many other respects.[http://www.pointoflaw.com/archives/000225.php , [http://www.pointoflaw.com/archives/000229.php . There are many other disputes relating to the question of medical malpractice reform; ''see'' Tort Reform and Non-economic Damages Caps . Common Good has proposed creating specialized medical courts to improve the American system; opponents of tort reform object to the idea. {Link without Title} REFERENCES AND EXTERNAL LINKS
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