What is malpractice?
Malpractice consists primarily of three elements that must be proven by a preponderance of the evidence (more than 51%). Those three elements are as follows:
- A departure from the standard of care; what the physician did or did not do to the patient. In other words, Was the treatment or failure to treat within the standard of care in the community?
- Did the physician’s departure from the standard of care cause the patient’s injury? Did the patient sustain an injury as a direct result of the physician’s treatment or failure to treat?
- Did your patient sustain verifiable economic and/or noneconomic (emotional distress) damages as a direct result of the physician’s treatment or failure to treat?
It is important to remember that just because a claim is filed does not mean malpractice (professional negligence) has occurred.
What is a claim?
A claim is a demand for compensation for an alleged injury for which the insured is said to be responsible. Specifically, The SCPIE Companies define a claim as follows:
“A claim is a written or oral demand for something as a legal right, consisting of more than an inquiry requesting an explanation or the lodging of a grievance without a demand for compensation, which the insured has received resulting from an occurrence. A claim includes, but is not limited to, a lawsuit, cross-claim or arbitration.”
(Note: The terms incident/occurrence, claim and lawsuit are not synonyms. An incident/occurrence is an event that may or may not lead to a claim; a claim—as defined above—is based on an incident/occurrence and may or may not turn into a lawsuit; a lawsuit always involves an incident/occurrence and claim.)
For further information on claims management, please review the following topics:
