RESEARCH STARTER

Malpractice

Malpractice refers to the failure of healthcare providers to meet professional standards of care, resulting in harm to patients, and it allows affected individuals to seek legal compensation. The concept of malpractice includes various forms of negligent behavior, encompassing not only physicians but also other healthcare staff, including nurses and medical facilities. Patients typically begin addressing their grievances by communicating directly with their provider, followed by lodging a complaint with a state medical board if unsatisfied. Legal action for malpractice necessitates proof of negligence, often supported by expert testimony from other medical professionals.

The issue of malpractice litigation is contentious in the U.S., marked by rising insurance costs, complex legal proceedings, and significant media attention that often sensationalizes high jury awards. This climate can lead to "defensive medicine," where doctors order unnecessary tests to protect themselves from potential lawsuits, contributing to increased healthcare costs. Although many lawsuits settle out of court, only a minority result in jury awards. Recent discussions around malpractice have focused on tort reform, attempting to balance patient rights with the need for healthcare providers to practice without fear of litigation. Overall, while the malpractice system aims to hold providers accountable and uphold care standards, it also raises questions about its broader impact on medical practice and patient care.

Full Article

DEFINITION: The failure to care for patients in accordance with professional standards, for which injured patients are allowed to sue for compensation

Controversies Surrounding Malpractice Litigation

In the United States, few medical topics arouse more anger in physicians, more debate in state legislatures, or more confusion in the public than malpractice. Wide attention has been paid to the controversy and debate surrounding medical malpractice lawsuits. In part, the media encourages this attention when it reports multimillion-dollar jury awards for damages, sensational stories that often make all the parties involved—lawyers, the defendant doctor, the plaintiff patient, and juries—look somehow reprehensible. In part, the rise in malpractice insurance, which contributed to the rise in the cost of medical care, upsets both doctors and the public. Yet, inflation and the rare spectacular settlement obscure the value of a system that, since the late eighteenth century, has given patients legal redress for injury, has helped maintain professional standards of medical care, and has allowed state governments some control over the local healthcare industry.

The word malpractice simply means the poor execution of duties. The definition bears close examination, however, on one key feature: what "poor" entails. The first recourse of a patient who feels inadequately cared for is to discuss the complaint with the doctor (or dentist, chiropractor, or other healthcare provider). This measure sufficiently addresses many complaints, as most are based on simple misunderstandings. A patient receiving no satisfaction from the doctor may file a complaint with the state board of medical examiners, which is each state’s official government body, staffed by doctors, that issues medical licenses and disciplines physicians and surgeons. In both cases, the doctor or a panel of peers will decide if the patient’s complaint meets the professional standards of poor care. A patient who is dissatisfied with this decision may bring a lawsuit in civil court. No patient, however, can file a malpractice lawsuit simply because they feel they have been wronged. For legal action to succeed, the doctor must have injured the patient because of negligent care. Even then, a patient's lawyer must rely on expert testimony from other doctors to establish that the physician provided the patient with substandard care, which caused the injury. All official avenues of redress, therefore, depend on the medical profession’s own standards.

Four basic standards guide doctors in ethically performing their professional duties, and failure in any one of them may constitute malpractice. First, doctors must inform their patients about treatments for an ailment and receive their explicit consent; together, this is known as informed consent. The patient must understand the doctor’s plan of treatment and any procedure’s potential risks and benefits. If a patient cannot understand due to age or mental condition, a guardian must consent, except in some emergency situations. The consent may be verbal unless an invasive technique, such as surgery, is involved, in which case, the law may require a signed consent form. Without the patient’s consent, a physician performing a medical procedure may be subject to a malpractice lawsuit or, in extreme cases, charged with assault under criminal law. Second, a doctor must treat a patient with reasonable skill, as defined by the accepted standards of medical practice. This point is crucial. Doctors do not have to render the best aid possible, or even the best aid of which they are capable; they must only meet professional guidelines for any specific diagnostic, palliative, or corrective measure. Both the key terms in this standard—"reasonable" and "accepted medical practice"—have been notoriously hard to define in court because they vary from region to region and from school of medicine to school of medicine. Rural physicians, for example, cannot be expected to give the level of care available in cities, since cities have more specialists and technology available, nor are general practitioners expected to have the skill of a specialist, such as a cardiologist. Third, physicians are responsible for the actions of other healthcare workers under their supervision regarding patient care. If other doctors (such as medical residents), nurses, physical therapists, or medical technicians act on a doctor’s orders, that doctor is ultimately responsible for supervising their performance. Fourth, a doctor accepting responsibility for a patient enters a contractual obligation and may not abandon that obligation without either finding another physician to take their place or notifying the patient well in advance so that the patient can engage another doctor. At the same time, however, the patient’s obligation is to follow the doctor’s medical advice.

Doctors are not the only healthcare workers who can be charged with malpractice. If other medical personnel act as a team with a doctor or surgeon, they may also be held liable. For example, during surgery, a surgeon is assisted by an anesthesiologist and various nurses, any of whom may separately fail in their duties and be sued as a result. Thus, whenever a patient experiences harm at the hands of a medical team, the trend has been to sue each member. Furthermore, if the facilities or personnel employed by a hospital prove substandard, the hospital itself may be liable.

Tort liability and contractual responsibility govern the legal treatment of malpractice, both of which fall under civil law. (This classification assumes that doctors inadvertently cause harm; if they intentionally injure a patient, they are subject to charges under criminal law.) A patient may sue for breach of contract if their doctor has broken that contract—usually by abandoning the patient without proper notice. This sort of lawsuit is by far the least common. Tort liability means that the doctor is responsible for any injury (tort) caused to the patient through negligence. The patient may seek compensation for a tort by suing the doctor for damages. The presumption is that money, which is almost always the form of compensation sought, can make up for the harm done. Damages can be awarded for two types of injury. Concrete physical injury is the most typical, and damages may include compensation for medical bills, lost wages, convalescent care, and other expenses directly related to the disability. A jury may also award damages for pain and suffering, a type of injury that is difficult to place a monetary value on; such damages account for some of the largest monetary awards.

Because damages may amount to millions of dollars, most doctors who lose a malpractice suit cannot hope to pay them without help. Insurance provides help, which usually takes one of three forms. First, for monthly payments (premiums), traditional insurance companies offer policies to doctors that will guarantee money up to a certain amount to pay damages. Also, if its client is sued, the insurance company assigns attorneys who handle the legal negotiations and the defense in court. Second, hospitals or other large organizations may pay for malpractice damages from a pool of money reserved for that purpose alone. Third, doctors and other healthcare providers may set up an insurance company of their own for mutual coverage, often called "bedpan mutuals."

Malpractice litigation in the United States is a ponderous, expensive business. In the mid-1970s, malpractice insurance prices began to rise sharply; between 1983 and 1985 alone, the cost increased 100 percent. Malpractice premiums remained relatively flat during the 1990s. By the end of the decade, however, physicians began to face unexpectedly large increases. In the early twenty-first century, eight states saw two or more liability insurers raise rates by at least 30 percent, according to the American Medical Association, and doctors in more than a dozen states saw one or more insurers charge at least 25 percent more for medical malpractice insurance. The George W. Bush presidential administration released a report that found the price of malpractice insurance for certain high-risk specialists increased about 10 percent in 2001, and the cost continued to rise. By the 2020s, the average annual cost of malpractice insurance ranged from $5,000 to $30,000, but for some specialists, particularly internal medicine specialists, surgeons, and obstetrics and gynecology professionals, the cost could exceed $100,000 per year. In addition to specialty, costs vary by location, claims history, the type of coverage chosen, and liability limits.

From 1996 to 1999, jury awards for medical malpractice claims jumped 76 percent, according to Jury Verdict Research. In the first quarter of the twenty-first century, the frequency of medical liability claims stabilized, but the number of malpractice suits won by plaintiffs and the average monetary award continued to increase. Doctors pass on some or all these costs to patients by charging higher fees. If a patient sues, however, the insurance cannot cover every type of loss. The amount of time a doctor must spend with lawyers, in court, and the overall distraction from practicing mean reduced earnings. Yet, the cost is not only to the doctor. The plaintiff pays the attorney a contingency fee, meaning the attorney receives a percentage (usually 20 to 30 percent) of the settlement amount. A patient who loses a lawsuit may not be required to pay the attorney (depending on their arrangement), but they must still pay court costs and expenses, which are often thousands of dollars. Finally, when suits reach court, public funds contribute to the court’s expenses, and those expenses climb if a decision is appealed or retried, as is sometimes the case.

Patients and doctors alike complain that soaring malpractice litigation in the United States since 1960 has been destructive, introducing suspicion into the doctor-patient relationship. In addition to its emotional impact, the suspicion concretely affects medical practice, most medical economists claim. Because physicians fear lawsuits, they perform more diagnostic tests than are called for by medical protocols. Often, the chances are remote that these tests will reveal any useful information, yet doctors order them to show that they have done everything possible for the patient if they are sued. The extra tests incur costs, which must be covered by either the patient or the insurance company. In either case, the expenditures inflate the cost of medicine. The practice of such "defensive medicine" has also led some doctors to refuse to perform high-risk procedures except in hospitals that have extensive facilities. Obstetricians provide a signal case in point. Fearing lawsuits for any complications that may arise, many obstetricians will not deliver babies at home or in small hospitals, forcing rural patients to rush long distances to the nearest big-city hospital for delivery.

One scholar of the malpractice system has remarked that it seems designed to protect the interests of everyone except the person who most needs help: the injured patient. While this is surely a rhetorical exaggeration, studies have found that only a fraction of injuries are ever compensated. Moreover, the system, based on adversarial disputation, seems hostile and dauntingly complex to both patient and physician. Many have argued for comprehensive tort reform that would include malpractice litigation. Yet, although no one thinks the system is perfect, it evolved in accordance with two widely held American attitudes toward regulation in general: it limits abuses, and it preserves professional autonomy.

Trial Procedures in Malpractice Cases

Few malpractice claims actually end in jury awards for damages. Overwhelmingly, the payments come from out-of-court settlements that win the plaintiff only a part of the money sought in the suit. Taking a case to a jury trial is risky for plaintiffs, as physicians win about half of these cases or more, depending on the strength of the evidence. For this reason, malpractice litigation is not popular with all lawyers.

To win a case in court, or at least to force the doctor’s insurance company to offer a settlement out of court, the lawyer must first be sure that a causal connection can be made between the patient’s injury and physician negligence. In other words, patients cannot sue simply on the hope of winning damages; courts reject such “frivolous” suits before they come to trial.

A lawyer who believes that a reasonable causal link can be established will write up a summons and complaint on the client’s behalf and send them to the doctor. The summons warns the doctor that the patient is filing a lawsuit against them. The complaint outlines the patient’s allegations of harm and the amount of damages the patient demands as compensation. The doctor must respond within a specific timeframe—about a month in most states—and the response, issued through the doctor’s lawyers or those of their insurance company, almost always denies responsibility for any injury. The legal battle is then joined.

During a pretrial period known as discovery, each side investigates the other, hoping to find facts that will support arguments in court. Lawyers rely on three investigative methods. The first is documentary disclosure. The plaintiff’s lawyer will demand records, especially the patient’s medical record, and the doctor must furnish them in a reasonable time. In the second method, written interrogatories, the plaintiff’s lawyer sends the doctor a list of questions that must be answered in writing. Third is the deposition, a formal legal proceeding. Lawyers from both sides meet and together question, in separate sessions, the defendant, plaintiff, and key witnesses, all of whom answer the questions under oath so that they are guilty of perjury if they lie. Many suits are dropped during discovery, with or without monetary settlement. If the suit continues, but one side has little evidence on which to base arguments, the other side may file a motion for summary judgment, which essentially asks a judge to end the litigation by disqualifying the weak case. Discovery and pretrial motions may take years to complete.

Trials follow a pattern, with some variations, designed to allow each side to present claims and counterclaims systematically. A trial begins with opening statements, in which the lawyers outline the general plan for their cases; no actual arguments are presented. Next, to clarify matters for the jury, the judge may summarize the applicable legal principles for the case. Then, witnesses are called and questioned, first by the plaintiff’s lawyer. After they finish with each witness, the defendant’s lawyer may also ask questions, a procedure called cross-examination. When the plaintiff’s side is done calling witnesses, then the defense lawyer calls and questions more, which the lawyer for the plaintiff may also cross-examine.

During the questioning, two types of evidence are admitted: testimony, the oral or written statements of what people have seen or heard, and "real" or "demonstrative" evidence, physical objects, such as an X-ray or a needle, that have a bearing on the case. The testimony is crucial for the plaintiff because, at this point, an expert witness must swear that the defendant was negligent to a medical certainty by failing to adhere to one or more medical standards of practice. Since only a doctor is qualified to make this judgment, expert witnesses in malpractice suits are always physicians. Finally, the lawyers make closing statements, each insisting that the evidence supports their client's position, and the jury retires to decide on a verdict. If the jurors decide in favor of the plaintiff, they can also lower or raise the amount of requested damages. If they decide for the defendant, the doctor, then the case ends without a monetary settlement. A victorious plaintiff cannot expect immediate payment. Appeals to higher courts may last years, and the appellate courts, after examining the trial records, can reverse a verdict, change the amount of damages, or order a new trial.

Even if a trial begins, however, it may not end in a verdict. At any point in the proceedings, one side or the other may give up. Insurance companies regularly send observers to malpractice trials who assess the progress of arguments objectively. An observer detecting a weakness in the defense or noticing that the jury favors the plaintiff for any reason will offer a settlement to the plaintiff’s lawyer because such a settlement will save court costs and probably involve less money than a jury award for damages. Likewise, the plaintiff’s lawyer, recognizing that the chances of winning are slim, may try to make a deal with the insurance company. This may even continue after a verdict is announced, if it is appealed. Additionally, at any point during the trial, the judge may dismiss the case if they believe that one side cannot possibly win; similarly, the judge may reverse a verdict or modify the amount of damages if the jury’s decision shocks their professional conscience.

Perspective and Prospects

By the mid-1970s, the entire American healthcare system, in the view of most healthcare observers, was in a state of crisis. Costs had risen, and facilities, especially in urban areas, were strained, while rural areas were often underserved. Critics have blamed the problems on increasingly costly technology and drugs, government regulation, professional salaries, and inadequate preventive medicine. Few doubt that malpractice litigation has also contributed significantly.

At the turn of the century, lawmakers in Ohio and other states began attempting to reduce premiums by passing laws that limit the jury awards injured patients can receive for pain and suffering. The George W. Bush administration also supported a nationwide cap of $250,000 on these damages, although questions remain about how effective such caps are. In 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (ACA), widely known as Obamacare, which encourages states to find and test alternatives to their existing litigation systems to improve patient safety; reduce medical errors; resolve disputes efficiently, promptly, and fairly; ensure better access to liability insurance; and preserve an individual's right to seek legal redress. The ACA also states that Congress should consider starting a state demonstration program to weigh alternatives to the existing civil litigation system. Critics of the ACA claimed that it failed to do enough to reduce the practice of defensive medicine.

Tort reforms encompass several measures that modify the procedures or awards in malpractice litigation. Two reforms are designed to shorten the process. One method is to reduce the statute of limitations for malpractice claims—the period after injury when a lawsuit can be started. The second involves limiting the rules governing the discovery phase of pretrial action. Two further reforms restrict the amount of damages. The most popular approach is to impose maximum amounts for specific types of injury, particularly pain and suffering. In the second reform, jury damages must be reduced by the amount of money from other sources, such as health insurance, that a patient receives for the injury.

Several states instituted review panels or required arbitration before a suit could proceed to court. Laypeople and judges, as well as doctors, make up the review panels that try to identify and disallow frivolous suits. Arbitration panels actually decide on the amount of damages, if any, to be made, and their decisions cannot be appealed.

These reforms only slowed the rate of lawsuits and the rise in the amount of money spent on paying damages and fees. By the mid-2020s, "nuclear" or "mega" verdicts became more common, with an increasing number of payouts totaling $25 million or more. Whatever its defects, the tort system has succeeded in making doctors wary of negligence. Critics insist, however, that the system for addressing malpractice has punished all physicians, not simply the incompetent, and has contributed to the litigious tenor of American society.

In May 2024, the American Law Institute revised the Restatement of the Law for medical malpractice and proposed a new standard for assessing negligence. The standard revisions aimed to shift the focus away from what is customary practice and toward a standard based on providing reasonable medical care. This change would enable courts to utilize practice guidelines and medical literature as evidence to inform their legal decisions.


Bibliography

Aaron, Daniel G., et al. “A New Legal Standard for Medical Malpractice.” JAMA, vol. 333, no. 13, 2025, pp. 1161–65, doi:10.1001/jama.2025.0097. Accessed 29 Sept. 2025.

Bieber, Christy. "Medical Malpractice Statistics of 2025." Forbes Advisor, 25 Jan. 2024, www.forbes.com/advisor/legal/personal-injury/medical-malpractice-statistics/#sources_section. Accessed 29 Sept. 2025.

Bono, Michael J., et al. "Medical Malpractice." StatPearls, NIH National Library of Medicine: National Center for Biotechnology Information, 31 Oct. 2022, www.ncbi.nlm.nih.gov/books/NBK470573. Accessed 29 Sept. 2025.

Furrow, Barry R., et al. Health Law: Cases, Materials and Problems. 9th ed., West Academic, 2022.

Groopman, Jerome E. Second Opinions: Stories of Intuition and Choice in the Changing World of Medicine. Viking, 2000.

Jonsen, Albert R., et al. Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine. 9th ed., McGraw, 2022.

Mehlman, Maxwell J. "Medical Practice Guidelines as Malpractice Safe Harbors: Illusion or Deceit?" Journal of Law, Medicine & Ethics, vol. 40, no. 2, 2012, pp. 286–300.

Merry, Alan, and Alexander McCall Smith. Errors, Medicine, and the Law. 2nd ed., Cambridge UP, 2017.

Nabity, Justin. "How Much Does Malpractice Insurance Cost? " Physicians Thrive, 19 Aug. 2025, physiciansthrive.com/malpractice-insurance/costs. Accessed 29 Sept. 2025.

"Patient Rights." MedlinePlus, 11 Oct. 2024, medlineplus.gov/patientrights.html. Accessed 29 Sept. 2025.

Pence, Gregory. Classic Cases in Medical Ethics: Accounts of Cases That Have Shaped Medical Ethics, with Philosophical, Legal, and Historical Backgrounds. 5th ed., McGraw, 2008.

Sage, William M., and Rogan Kersh, editors. Medical Malpractice and the U.S. Health Care System. Cambridge UP, 2006.

Sharpe, Virginia F., and Alan I. Faden. Medical Harm: Historical, Conceptual, and Ethical Dimensions of Iatrogenic Illness. Cambridge UP, 1998.

Williams, Alan G. "The Cure for What Ails: A Realistic Remedy for the Medical Malpractice 'Crisis.'" Stanford Law & Policy Review, vol. 23, no. 2, 2012, pp. 477–521.

Zobel, Hiller B., and Stephen N. Rous. Doctors and the Law: Defendants and Expert Witnesses. Norton, 1993.

Full Article

DEFINITION: The failure to care for patients in accordance with professional standards, for which injured patients are allowed to sue for compensation

Controversies Surrounding Malpractice Litigation

In the United States, few medical topics arouse more anger in physicians, more debate in state legislatures, or more confusion in the public than malpractice. Wide attention has been paid to the controversy and debate surrounding medical malpractice lawsuits. In part, the media encourages this attention when it reports multimillion-dollar jury awards for damages, sensational stories that often make all the parties involved—lawyers, the defendant doctor, the plaintiff patient, and juries—look somehow reprehensible. In part, the rise in malpractice insurance, which contributed to the rise in the cost of medical care, upsets both doctors and the public. Yet, inflation and the rare spectacular settlement obscure the value of a system that, since the late eighteenth century, has given patients legal redress for injury, has helped maintain professional standards of medical care, and has allowed state governments some control over the local healthcare industry.

The word malpractice simply means the poor execution of duties. The definition bears close examination, however, on one key feature: what "poor" entails. The first recourse of a patient who feels inadequately cared for is to discuss the complaint with the doctor (or dentist, chiropractor, or other healthcare provider). This measure sufficiently addresses many complaints, as most are based on simple misunderstandings. A patient receiving no satisfaction from the doctor may file a complaint with the state board of medical examiners, which is each state’s official government body, staffed by doctors, that issues medical licenses and disciplines physicians and surgeons. In both cases, the doctor or a panel of peers will decide if the patient’s complaint meets the professional standards of poor care. A patient who is dissatisfied with this decision may bring a lawsuit in civil court. No patient, however, can file a malpractice lawsuit simply because they feel they have been wronged. For legal action to succeed, the doctor must have injured the patient because of negligent care. Even then, a patient's lawyer must rely on expert testimony from other doctors to establish that the physician provided the patient with substandard care, which caused the injury. All official avenues of redress, therefore, depend on the medical profession’s own standards.

Four basic standards guide doctors in ethically performing their professional duties, and failure in any one of them may constitute malpractice. First, doctors must inform their patients about treatments for an ailment and receive their explicit consent; together, this is known as informed consent. The patient must understand the doctor’s plan of treatment and any procedure’s potential risks and benefits. If a patient cannot understand due to age or mental condition, a guardian must consent, except in some emergency situations. The consent may be verbal unless an invasive technique, such as surgery, is involved, in which case, the law may require a signed consent form. Without the patient’s consent, a physician performing a medical procedure may be subject to a malpractice lawsuit or, in extreme cases, charged with assault under criminal law. Second, a doctor must treat a patient with reasonable skill, as defined by the accepted standards of medical practice. This point is crucial. Doctors do not have to render the best aid possible, or even the best aid of which they are capable; they must only meet professional guidelines for any specific diagnostic, palliative, or corrective measure. Both the key terms in this standard—"reasonable" and "accepted medical practice"—have been notoriously hard to define in court because they vary from region to region and from school of medicine to school of medicine. Rural physicians, for example, cannot be expected to give the level of care available in cities, since cities have more specialists and technology available, nor are general practitioners expected to have the skill of a specialist, such as a cardiologist. Third, physicians are responsible for the actions of other healthcare workers under their supervision regarding patient care. If other doctors (such as medical residents), nurses, physical therapists, or medical technicians act on a doctor’s orders, that doctor is ultimately responsible for supervising their performance. Fourth, a doctor accepting responsibility for a patient enters a contractual obligation and may not abandon that obligation without either finding another physician to take their place or notifying the patient well in advance so that the patient can engage another doctor. At the same time, however, the patient’s obligation is to follow the doctor’s medical advice.

Doctors are not the only healthcare workers who can be charged with malpractice. If other medical personnel act as a team with a doctor or surgeon, they may also be held liable. For example, during surgery, a surgeon is assisted by an anesthesiologist and various nurses, any of whom may separately fail in their duties and be sued as a result. Thus, whenever a patient experiences harm at the hands of a medical team, the trend has been to sue each member. Furthermore, if the facilities or personnel employed by a hospital prove substandard, the hospital itself may be liable.

Tort liability and contractual responsibility govern the legal treatment of malpractice, both of which fall under civil law. (This classification assumes that doctors inadvertently cause harm; if they intentionally injure a patient, they are subject to charges under criminal law.) A patient may sue for breach of contract if their doctor has broken that contract—usually by abandoning the patient without proper notice. This sort of lawsuit is by far the least common. Tort liability means that the doctor is responsible for any injury (tort) caused to the patient through negligence. The patient may seek compensation for a tort by suing the doctor for damages. The presumption is that money, which is almost always the form of compensation sought, can make up for the harm done. Damages can be awarded for two types of injury. Concrete physical injury is the most typical, and damages may include compensation for medical bills, lost wages, convalescent care, and other expenses directly related to the disability. A jury may also award damages for pain and suffering, a type of injury that is difficult to place a monetary value on; such damages account for some of the largest monetary awards.

Because damages may amount to millions of dollars, most doctors who lose a malpractice suit cannot hope to pay them without help. Insurance provides help, which usually takes one of three forms. First, for monthly payments (premiums), traditional insurance companies offer policies to doctors that will guarantee money up to a certain amount to pay damages. Also, if its client is sued, the insurance company assigns attorneys who handle the legal negotiations and the defense in court. Second, hospitals or other large organizations may pay for malpractice damages from a pool of money reserved for that purpose alone. Third, doctors and other healthcare providers may set up an insurance company of their own for mutual coverage, often called "bedpan mutuals."

Malpractice litigation in the United States is a ponderous, expensive business. In the mid-1970s, malpractice insurance prices began to rise sharply; between 1983 and 1985 alone, the cost increased 100 percent. Malpractice premiums remained relatively flat during the 1990s. By the end of the decade, however, physicians began to face unexpectedly large increases. In the early twenty-first century, eight states saw two or more liability insurers raise rates by at least 30 percent, according to the American Medical Association, and doctors in more than a dozen states saw one or more insurers charge at least 25 percent more for medical malpractice insurance. The George W. Bush presidential administration released a report that found the price of malpractice insurance for certain high-risk specialists increased about 10 percent in 2001, and the cost continued to rise. By the 2020s, the average annual cost of malpractice insurance ranged from $5,000 to $30,000, but for some specialists, particularly internal medicine specialists, surgeons, and obstetrics and gynecology professionals, the cost could exceed $100,000 per year. In addition to specialty, costs vary by location, claims history, the type of coverage chosen, and liability limits.

From 1996 to 1999, jury awards for medical malpractice claims jumped 76 percent, according to Jury Verdict Research. In the first quarter of the twenty-first century, the frequency of medical liability claims stabilized, but the number of malpractice suits won by plaintiffs and the average monetary award continued to increase. Doctors pass on some or all these costs to patients by charging higher fees. If a patient sues, however, the insurance cannot cover every type of loss. The amount of time a doctor must spend with lawyers, in court, and the overall distraction from practicing mean reduced earnings. Yet, the cost is not only to the doctor. The plaintiff pays the attorney a contingency fee, meaning the attorney receives a percentage (usually 20 to 30 percent) of the settlement amount. A patient who loses a lawsuit may not be required to pay the attorney (depending on their arrangement), but they must still pay court costs and expenses, which are often thousands of dollars. Finally, when suits reach court, public funds contribute to the court’s expenses, and those expenses climb if a decision is appealed or retried, as is sometimes the case.

Patients and doctors alike complain that soaring malpractice litigation in the United States since 1960 has been destructive, introducing suspicion into the doctor-patient relationship. In addition to its emotional impact, the suspicion concretely affects medical practice, most medical economists claim. Because physicians fear lawsuits, they perform more diagnostic tests than are called for by medical protocols. Often, the chances are remote that these tests will reveal any useful information, yet doctors order them to show that they have done everything possible for the patient if they are sued. The extra tests incur costs, which must be covered by either the patient or the insurance company. In either case, the expenditures inflate the cost of medicine. The practice of such "defensive medicine" has also led some doctors to refuse to perform high-risk procedures except in hospitals that have extensive facilities. Obstetricians provide a signal case in point. Fearing lawsuits for any complications that may arise, many obstetricians will not deliver babies at home or in small hospitals, forcing rural patients to rush long distances to the nearest big-city hospital for delivery.

One scholar of the malpractice system has remarked that it seems designed to protect the interests of everyone except the person who most needs help: the injured patient. While this is surely a rhetorical exaggeration, studies have found that only a fraction of injuries are ever compensated. Moreover, the system, based on adversarial disputation, seems hostile and dauntingly complex to both patient and physician. Many have argued for comprehensive tort reform that would include malpractice litigation. Yet, although no one thinks the system is perfect, it evolved in accordance with two widely held American attitudes toward regulation in general: it limits abuses, and it preserves professional autonomy.

Trial Procedures in Malpractice Cases

Few malpractice claims actually end in jury awards for damages. Overwhelmingly, the payments come from out-of-court settlements that win the plaintiff only a part of the money sought in the suit. Taking a case to a jury trial is risky for plaintiffs, as physicians win about half of these cases or more, depending on the strength of the evidence. For this reason, malpractice litigation is not popular with all lawyers.

To win a case in court, or at least to force the doctor’s insurance company to offer a settlement out of court, the lawyer must first be sure that a causal connection can be made between the patient’s injury and physician negligence. In other words, patients cannot sue simply on the hope of winning damages; courts reject such “frivolous” suits before they come to trial.

A lawyer who believes that a reasonable causal link can be established will write up a summons and complaint on the client’s behalf and send them to the doctor. The summons warns the doctor that the patient is filing a lawsuit against them. The complaint outlines the patient’s allegations of harm and the amount of damages the patient demands as compensation. The doctor must respond within a specific timeframe—about a month in most states—and the response, issued through the doctor’s lawyers or those of their insurance company, almost always denies responsibility for any injury. The legal battle is then joined.

During a pretrial period known as discovery, each side investigates the other, hoping to find facts that will support arguments in court. Lawyers rely on three investigative methods. The first is documentary disclosure. The plaintiff’s lawyer will demand records, especially the patient’s medical record, and the doctor must furnish them in a reasonable time. In the second method, written interrogatories, the plaintiff’s lawyer sends the doctor a list of questions that must be answered in writing. Third is the deposition, a formal legal proceeding. Lawyers from both sides meet and together question, in separate sessions, the defendant, plaintiff, and key witnesses, all of whom answer the questions under oath so that they are guilty of perjury if they lie. Many suits are dropped during discovery, with or without monetary settlement. If the suit continues, but one side has little evidence on which to base arguments, the other side may file a motion for summary judgment, which essentially asks a judge to end the litigation by disqualifying the weak case. Discovery and pretrial motions may take years to complete.

Trials follow a pattern, with some variations, designed to allow each side to present claims and counterclaims systematically. A trial begins with opening statements, in which the lawyers outline the general plan for their cases; no actual arguments are presented. Next, to clarify matters for the jury, the judge may summarize the applicable legal principles for the case. Then, witnesses are called and questioned, first by the plaintiff’s lawyer. After they finish with each witness, the defendant’s lawyer may also ask questions, a procedure called cross-examination. When the plaintiff’s side is done calling witnesses, then the defense lawyer calls and questions more, which the lawyer for the plaintiff may also cross-examine.

During the questioning, two types of evidence are admitted: testimony, the oral or written statements of what people have seen or heard, and "real" or "demonstrative" evidence, physical objects, such as an X-ray or a needle, that have a bearing on the case. The testimony is crucial for the plaintiff because, at this point, an expert witness must swear that the defendant was negligent to a medical certainty by failing to adhere to one or more medical standards of practice. Since only a doctor is qualified to make this judgment, expert witnesses in malpractice suits are always physicians. Finally, the lawyers make closing statements, each insisting that the evidence supports their client's position, and the jury retires to decide on a verdict. If the jurors decide in favor of the plaintiff, they can also lower or raise the amount of requested damages. If they decide for the defendant, the doctor, then the case ends without a monetary settlement. A victorious plaintiff cannot expect immediate payment. Appeals to higher courts may last years, and the appellate courts, after examining the trial records, can reverse a verdict, change the amount of damages, or order a new trial.

Even if a trial begins, however, it may not end in a verdict. At any point in the proceedings, one side or the other may give up. Insurance companies regularly send observers to malpractice trials who assess the progress of arguments objectively. An observer detecting a weakness in the defense or noticing that the jury favors the plaintiff for any reason will offer a settlement to the plaintiff’s lawyer because such a settlement will save court costs and probably involve less money than a jury award for damages. Likewise, the plaintiff’s lawyer, recognizing that the chances of winning are slim, may try to make a deal with the insurance company. This may even continue after a verdict is announced, if it is appealed. Additionally, at any point during the trial, the judge may dismiss the case if they believe that one side cannot possibly win; similarly, the judge may reverse a verdict or modify the amount of damages if the jury’s decision shocks their professional conscience.

Perspective and Prospects

By the mid-1970s, the entire American healthcare system, in the view of most healthcare observers, was in a state of crisis. Costs had risen, and facilities, especially in urban areas, were strained, while rural areas were often underserved. Critics have blamed the problems on increasingly costly technology and drugs, government regulation, professional salaries, and inadequate preventive medicine. Few doubt that malpractice litigation has also contributed significantly.

At the turn of the century, lawmakers in Ohio and other states began attempting to reduce premiums by passing laws that limit the jury awards injured patients can receive for pain and suffering. The George W. Bush administration also supported a nationwide cap of $250,000 on these damages, although questions remain about how effective such caps are. In 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (ACA), widely known as Obamacare, which encourages states to find and test alternatives to their existing litigation systems to improve patient safety; reduce medical errors; resolve disputes efficiently, promptly, and fairly; ensure better access to liability insurance; and preserve an individual's right to seek legal redress. The ACA also states that Congress should consider starting a state demonstration program to weigh alternatives to the existing civil litigation system. Critics of the ACA claimed that it failed to do enough to reduce the practice of defensive medicine.

Tort reforms encompass several measures that modify the procedures or awards in malpractice litigation. Two reforms are designed to shorten the process. One method is to reduce the statute of limitations for malpractice claims—the period after injury when a lawsuit can be started. The second involves limiting the rules governing the discovery phase of pretrial action. Two further reforms restrict the amount of damages. The most popular approach is to impose maximum amounts for specific types of injury, particularly pain and suffering. In the second reform, jury damages must be reduced by the amount of money from other sources, such as health insurance, that a patient receives for the injury.

Several states instituted review panels or required arbitration before a suit could proceed to court. Laypeople and judges, as well as doctors, make up the review panels that try to identify and disallow frivolous suits. Arbitration panels actually decide on the amount of damages, if any, to be made, and their decisions cannot be appealed.

These reforms only slowed the rate of lawsuits and the rise in the amount of money spent on paying damages and fees. By the mid-2020s, "nuclear" or "mega" verdicts became more common, with an increasing number of payouts totaling $25 million or more. Whatever its defects, the tort system has succeeded in making doctors wary of negligence. Critics insist, however, that the system for addressing malpractice has punished all physicians, not simply the incompetent, and has contributed to the litigious tenor of American society.

In May 2024, the American Law Institute revised the Restatement of the Law for medical malpractice and proposed a new standard for assessing negligence. The standard revisions aimed to shift the focus away from what is customary practice and toward a standard based on providing reasonable medical care. This change would enable courts to utilize practice guidelines and medical literature as evidence to inform their legal decisions.


Bibliography

Aaron, Daniel G., et al. “A New Legal Standard for Medical Malpractice.” JAMA, vol. 333, no. 13, 2025, pp. 1161–65, doi:10.1001/jama.2025.0097. Accessed 29 Sept. 2025.

Bieber, Christy. "Medical Malpractice Statistics of 2025." Forbes Advisor, 25 Jan. 2024, www.forbes.com/advisor/legal/personal-injury/medical-malpractice-statistics/#sources_section. Accessed 29 Sept. 2025.

Bono, Michael J., et al. "Medical Malpractice." StatPearls, NIH National Library of Medicine: National Center for Biotechnology Information, 31 Oct. 2022, www.ncbi.nlm.nih.gov/books/NBK470573. Accessed 29 Sept. 2025.

Furrow, Barry R., et al. Health Law: Cases, Materials and Problems. 9th ed., West Academic, 2022.

Groopman, Jerome E. Second Opinions: Stories of Intuition and Choice in the Changing World of Medicine. Viking, 2000.

Jonsen, Albert R., et al. Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine. 9th ed., McGraw, 2022.

Mehlman, Maxwell J. "Medical Practice Guidelines as Malpractice Safe Harbors: Illusion or Deceit?" Journal of Law, Medicine & Ethics, vol. 40, no. 2, 2012, pp. 286–300.

Merry, Alan, and Alexander McCall Smith. Errors, Medicine, and the Law. 2nd ed., Cambridge UP, 2017.

Nabity, Justin. "How Much Does Malpractice Insurance Cost? " Physicians Thrive, 19 Aug. 2025, physiciansthrive.com/malpractice-insurance/costs. Accessed 29 Sept. 2025.

"Patient Rights." MedlinePlus, 11 Oct. 2024, medlineplus.gov/patientrights.html. Accessed 29 Sept. 2025.

Pence, Gregory. Classic Cases in Medical Ethics: Accounts of Cases That Have Shaped Medical Ethics, with Philosophical, Legal, and Historical Backgrounds. 5th ed., McGraw, 2008.

Sage, William M., and Rogan Kersh, editors. Medical Malpractice and the U.S. Health Care System. Cambridge UP, 2006.

Sharpe, Virginia F., and Alan I. Faden. Medical Harm: Historical, Conceptual, and Ethical Dimensions of Iatrogenic Illness. Cambridge UP, 1998.

Williams, Alan G. "The Cure for What Ails: A Realistic Remedy for the Medical Malpractice 'Crisis.'" Stanford Law & Policy Review, vol. 23, no. 2, 2012, pp. 477–521.

Zobel, Hiller B., and Stephen N. Rous. Doctors and the Law: Defendants and Expert Witnesses. Norton, 1993.

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