Duke University School of Law
"Medical malpractice" denotes the basis for a civil action brought by a patient against a physician for injuries resulting from negligence. The current method for compensating victims of these occurrences is primarily a fault-and-liability insurance system. The first principle of tort liability is that the party at fault pays for the damage inflicted upon an innocent victim. Whether a doctor is at fault is determined in an adversary proceeding, with both the doctor and the patient represented by counsel. The triers of fact have the task of ascertaining whether the defendant was at fault, and if so, what compensation he must pay for the injury. The formula for determining whether the physician is liable to the patient is commonly phrased in -terms of his failure either to "possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess," or to "exercise reasonable care and diligence in the application of his knowledge and skill -to the patients case."'
George J. Annas,
Medical Malpractice Litigation under National Health Insurance: Essential or Expendable,
Duke Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1208