Hospitals are companies that are public or private institutions. In the context of medical malpractice, hospitals can be held directly liable for their own negligence and also «by proxy» for an employee`s negligent acts. Vicarious liability means that one party is liable not for its own negligence, but for the negligence of another party. Since medical malpractice litigation is a widespread phenomenon, it is likely that surgeons will encounter it at some point in their careers. Once a claim has been filed, the defendant physician must address an unknown area of law in which the objectives, professional conduct, and procedures of the litigants differ from the practice of medicine. The purpose of this article is to provide orthopaedic surgeons with an introduction to the basic concepts of medical malpractice law, including the language, court structure, and courts that govern medical malpractice litigation in the United States. The first duty of a pharmaceutical manufacturer is to doctors. Thus, as a general rule, a manufacturer is not liable for injuries sustained by a patient, provided that it adequately informs the physician of all the risks associated with a particular drug. As far as the end-user is concerned, a pharmaceutical company is only required to ensure that the medicinal products it manufactures are reasonably safe when used as intended. To ensure the safety of a medicine, the manufacturer must study the side effects and possible risks of the medicine before placing it on the market.

However, if the pharmaceutical manufacturer does not adequately warn a physician of the dangers of a drug, the drug becomes what is called «unreasonably dangerous» under the Product Liability Act, and the manufacturer may be held liable for failing to provide proper warnings. In France, the medical malpractice system was similar to that of the United States until 2002; Patients could sue for medical malpractice in court and settle or go to court. Legal regulations made it difficult for patients to assert themselves in a legal dispute against a doctor. The amendments introduced in 2002 introduced a no-fault out-of-court system whereby patients could submit complaints to a review board appointed by the regional government. The money to compensate injured patients comes from a national fund financed by doctors` and hospitals` insurance premiums or by income from the general fund. Findlaw notes that the liability of enforcement agents can be a factor in medical malpractice. In the event that a hospital employee injures a patient, the hospital could be held liable for medical malpractice under the Respondent Superior Doctrine. In this case, the hospital may be held liable if the hospital employee acted in the usual area of work at the time of the medical malpractice. Medical malpractice cases are rarely brought to court, and this generally applies to civil litigation in the United States. The reason for this is that the legal system is based on adversarial representation of interests by the respective lawyers in order to promote and promote effective self-resolution of civil disputes.

To this end, a number of legal instruments have been developed, the most important of which is the discovery process. Between the filing of the prosecution and the process, there is a long and long period of discovery or exchange of information and understanding of the facts between the parties. The discovery process is facilitated by requests for documents, examinations and statements; This is all part of a large pre-litigation and extrajudicial dispute between the parties, which the legal system is supposed to promote. The documents consist of medical records; A request for medical records is usually the first step a plaintiff`s lawyer takes to review the case. Other documents may include hospital billing information, clinical notes, and related documents. Once the case is closed, an interrogation is a form submitted by lawyers to the opposing party; The aim is to gather preliminary and demographic information about the party. Statements are formal proceedings in which a litigant is examined under oath by a lawyer and a transcript of the proceedings is prepared for later use in court. The reasoning is that by obliging the parties to the dispute to exchange facts and underlying information, such as relevant expert testimony, the parties can reach mutual understanding and settle the case. In the absence of an agreement, the information obtained during the discovery is presented during the process; Contrary to popular belief about disputes, neither party can surprise the other party by introducing new and undiscovered facts. In the United States, lawsuits for medical malpractice appeared regularly from the 1800s [3]. Prior to the 1960s, however, claims based on medical malpractice were rare and had little influence on the practice of medicine [21]. Since the 1960s, the frequency of medical malpractice claims has increased; and today, lawsuits filed by injured patients for alleged medical malpractice by a physician are relatively common in the United States.

A survey of joint surgeons found that over 70% of respondents have been sued for medical malpractice at least once in their careers [23]. The current law of medical malpractice has its origins in 19th century English common law [22]. English common law refers to the legal system of England and Wales and forms the basis of jurisprudence in the United States and many other Commonwealth countries to which it was exported during the time of the British Empire. Common law refers to the law and legal systems developed by the decisions of courts and judges, as opposed to laws developed solely by statutory or executive decisions. In the United States, medical malpractice law falls under state jurisdiction; The framework and the rules governing it have been established by decisions of actions before the State courts. Therefore, state law governing medical malpractice may vary in different jurisdictions in the United States, although the principles are similar. In addition, over the past 30 years, laws passed by state legislatures have further influenced the authoritative principles of the Medical Errors Act. Therefore, medical malpractice law in the United States is based on common law, which is modified by state legislation that varies from state to state.

In most cases, the prescribing physician is considered a «trained intermediary,» meaning that because of their superior medical knowledge and assuming they have received sufficient information from the manufacturer, they are in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the doctor has the main duty to inform the patient about the risks and side effects of a drug or medical device prescribed by him. In Germany, claims for medical malpractice are referred to the mediation committees and expert committees of the doctors` guild. Patients can reject the outcome of the mediation and take their case to court, where the system for judging medical malpractice is similar to that of the United States. Sweden, Finland, Denmark and Norway also operate out-of-court and error-free systems to compensate patients for injuries they sustain due to preventable risks and complications associated with medical care. The systems also compensate patients for injuries caused by faulty equipment, misuse of equipment, misdiagnoses and infections during treatment. The right to medical malpractice is a kind of malpractice in the genre of professional misconduct (torts). Some tort claims involve intentional acts (e.g., personal injury, defamation), but most involve a person suing another person or institution for alleged negligent bodily injury. Doctors are sued for negligence more than any other profession, particularly because medical care is dangerous in itself and often leads to bodily injury, the central concern of tort law. Once damages have been determined by a court, the losing party may request a new proceeding or appeal the judgment to the next higher court.

To this end, there are courts of appeal in each state and in the federal system. In some jurisdictions, parties may appeal the scope of the judgment to the same court; Thus, dissatisfied plaintiffs may want more money, while defendant physicians may seek a reduction in the amount awarded. In practice, however, the United States legal system is extremely respectful of the finality of a jury trial; Successful appeals usually involve a particular legal or procedural issue that may have been misapplied during the trial. If a jury applies the right law and the trial court follows a legal process, it is unlikely that the outcome of a trial will be disrupted on appeal, even if it seems unfair or wrong. This implies in practice that cases of professional misconduct are won or lost in court; Therefore, medical preparation, involvement, involvement and cooperation with the defense attorney are important. The process for selecting lawyers in medical malpractice proceedings is different for plaintiffs and defendants. In the United States, attorneys for aggrieved patients are hired by the patient, usually on a contingency fee basis, with the attorney only receiving money if financial damages are awarded. This system has been criticized for encouraging medical malpractice lawsuits, unscrupulous defense on behalf of the patient, and deterrence of meritorious medical malpractice with little chance of financial redress [5].

However, the vast majority of medical malpractice prosecutions do not result in a jury verdict.