Sunday, April 22, 2007

No Evacuation Plan for Hospitals: Negligence or Malpractice?

The Louisiana Supreme Court is considering a question that could shift hundreds of Katrina-related claims against hospitals away from the courts and redirect them to a state malpractice panel. Plaintiff attorney Laurence Best of New Orleans represents two men whose mother died at Methodist Memorial Hospital in the days following Hurricane Katrina. This case is the first of several hundred similar claims. Houma Courier,Associated Press, 04/12/2007


GumboFilé said...

What is the legal distinction between negligence and malpractice? Is negligence handled in criminal court and malpractice in the civil court? Couldn't a matter be both?

Anthony Fazzio said...

Is negligence handled in criminal court and malpractice in the civil court? No.

The distinction has to do with the standard of care and mechanism established for rendering a judgment.

Juries and judges use a “reasonable man standard” to determine if an act, such as auto accident, is negligent. Juries and judges often reach this result without expert testimony.

Medical malpractice is determined by breach of care "required of medical professionals." Juries and judges must rely on medical experts to determine both the standard of care required and the breach.

Most important: Negligence cases are filed first in a district court (either state or federal) and are tried there.

In Louisiana, a medical review panel, consisting of 3 physicians acting as a peer review panel, must first hear medical malpractices case. The parties may rely on the decision of the panel or, if they disagree with the panel, they can thereafter file a lawsuit. The opinion of the panel is typically introduced at the trial. For all practical purposes, medical malpractice cases are tried twice: First, to a panel. Secondly, to a judge or jury.

Couldn't a matter be both? Yes, but the standard would be different and the degree of proof is different.

In civil matters the degree of proof is "preponderance of the evidence." In criminal matters it's "beyond a reasonable doubt."