Medical malpractice claims in the US legal system

Abstract

The US legal system is derived from the common law or case law system of eighteenth century England, with the consequence that much, if not most, of the law is found in the written opinion of judges in individual cases rather than statutes or codes adopted by legislatures. The law defining relationships between and among individuals, and assessing day-to-day conduct and interaction, is found in the 50 states. Both of these characteristics are reflected in the law of torts or private wrongs, which is concerned with compensating individuals for injury or damage to person or property caused by another individual. In other words, the law of torts, including medical malpractice, is to be found primarily (but not exclusively) in the opinions of state court judges. In addition to this case law, many states have enacted statutes which impose special requirements for medical malpractice claims; for example, creating special panels to screen claims before they can be presented in court. Both case law and statutory law differ in important ways from state to state. The US legal system is adversarial rather than inquisitorial in nature. The decision-maker, whether judge or jury in their respective roles, does not investigate the asserted grounds for the claim to compensation. Instead, each of the parties, through legal counsel, presents the facts and legal argument which it believes requires a decision in its favor; and, in this clash of positions, the decision-maker finds truth and the just result - or so theory and faith would have it. At the trial of most tort claims, the jury decides the facts on which the claim and defense are based, including the credibility of witnesses. The judge articulates the legal principles and standards which will determine whether the claimant (called thepluintgj) is