| Appendix B Glossary of Medicolegal Terms |
Developed in cooperation with the . . .
A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z
Abandoment
Termination of the physician-patient relationship by the physician without reasonable notice to the patient at a time when the patient requires medical attention and without the opportunity to make arrangements for appropriate continuation and follow-up care. |
Ad damnum clause
The section of the plaintiff’s complaint that states the damages claimed. |
Admissibility (in evidence) Refers to rules that govern whether evidence may be properly received and considered in a legal proceeding. |
Admission against interest A statement made by one person to another in conflict with the legal interests of the person making the statement. |
Affidavit Voluntary, written statement that is made under oath. |
Affirmative defense Used in an answer to a complaint to plead facts that do not deny the behavior alleged but rather claim other legal defenses. Pleading the statute of limitations is an example. |
| Agency
Relationship between persons in which one party authorizes the other to act for or to represent that party. |
Allegation
Statement that a party makes in a pleading and expects to be able to prove. |
Alternative dispute resolution
Out-of-court resolution of a dispute between parties which does not involve the judicial system. Examples: arbitration, mediation, negotiation. |
Answer
A defendant’s written response to a complaint. |
Appeal
The process by which a decision by a lower court is brought for review before a court of higher jurisdiction. The party bringing the appeal is the appellant. The party against whom the appeal is taken is the appellee. |
Arbitration
An alternative to a judicial proceeding for resolution of a dispute involving one or more third party arbitration judges who are mutually chosen by the disputing parties. An arbitration decision may or may not be binding, depending upon what the parties have agreed. |
Assault
Intentional and unauthorized act of placing another in apprehension of immediate bodily harm. |
| Return to top |
| Battery
Intentional and unauthorized touching of a person, directly or indirectly, without consent. For example, a surgical procedure performed upon a person without express or implied consent constitutes a battery. |
| Breach of contract
One party asserts that the other party had a contractual obligation and failed to complete or perform that obligation, which gives rise to an action to compel performance of the obligation or to provide adequate compensation for the failure to perform. |
| Breach of warranty
The failure or falsehood of an affirmative promise or statement about a product or service. |
| Burden of proof
Typically, a plaintiff’s responsibility to affirmatively prove a fact or facts in dispute on an issue raised between the parties in a case. |
| Return to top |
Captain of the ship
Doctrine imposing liability on a surgeon for the actions of assistants who, though employees of the hospital, are under the surgeon’s control or supervision. |
| Causation
The causal connection between the act or omission of the defendant and the injury suffered by the plaintiff. The plaintiff must show causation of an injury by the defendant in order to prove negligence. |
| Cause of action
Set of alleged facts that gives rise to a legal right to redress at law. |
| Certificate of merit
A tort reform mandated by law in several states that requires the plaintiff or his attorney in a medical malpractice case to file an affidavit or other sworn statement with, or shortly after, the complaint stating that the case has been reviewed by a qualified expert who determined that, on its face, it is not frivolous. |
| Civil action
A non-criminal case. |
Claim
In legal terminology, a demand for damages as stated in a lawsuit. A “notice of claim” is required in some states to initiate a screening or mediation process before a lawsuit can be filed. The notice triggers a responsibility on the part of the defendant to respond to the court within a period of time, usually thirty to ninety days. A “claim file” is established by the physician’s insurer following either notification of a patient’s intention to seek damages or, more frequently, following notification by the physician of an adverse outcome or event. The latter notification will trigger coverage should a legal claim later arise, and more importantly will provide the physician with advice on how best to correspond to the event in question.
Counterclaim
Defendant’s claim against a plaintiff. |
Collateral source rule
The doctrine that provides that payments the plaintiff receives as compensation for his injuries from sources other than the defendant has received from workers’ compensation, may not be admitted into evidence or subtracted from the plaintiff’s damage award. |
| Common law
Body of law based on usages and customs, and developed from court decisions as opposed to statutes enacted by legislatures and all other types of law. |
| Comparative negligence
The principle adopted by most states that reduces a plaintiff’s recovery proportional to the plaintiff’s degree of fault in causing the damage. Some states have a partial comparative negligence rule which denies recovery to any plaintiff who is one half or more at fault. |
| Compensation
Money payment to a plaintiff for damages for the injury caused by a defendant. |
| Complaint
The initial pleading by the plaintiff in filing a civil lawsuit. Its purpose is to give the defendant notice of the facts the plaintiff alleges constituting the cause of action. |
| Confidential communication
Information transmitted within certain protected relationships such as physician-patient or attorney-client, and thus protected from forced disclosure. |
Consent
Voluntary act by which one person agrees to allow another person to do something.
|
Consultation
Formal request by an attending physician of a medical specialist in a field for which information is sought. Ordinarily a legal duty to consult arises when, after a reasonable length of time and effort on the part of the attending physician, the diagnosis is unusually difficult and uncertain, the therapy is ineffective, or the patient requests a consultation. To be legally sufficient, a consultation requires that the consultant personally examine the patient and the patient’s records. In consultation, the attending physician retains primary responsibility. In contrast, a referral involves the transferal of the complete responsibility for the care of the patient to the consulting physician. |
| Contingency fee
A fee agreement between the plaintiff and an attorney whereby the plaintiff agrees to pay the attorney a percentage of the damages recovered. If no damages are recovered no fee is owed to the attorney. |
| Contract
Obligation that binds consenting parties to perform the terms of an agreement that they have reached by mutual meeting of the minds. |
| Contributory negligence
The principle which affects a plaintiff’s recovery when the damage suffered is partly the plaintiff’s fault. Most states have supplanted this doctrine by either the doctrine of comparative negligence or the doctrine of partial comparative negligence. This doctrine in some states, if proven, may bar plaintiff’s recovery of any damages. |
| Covenant not to sue
A partial release by the plaintiff which involves the plaintiff’s consent to give up the plaintiff’s claim against certain defendants for money damages, but without giving up the plaintiff’s claim against other defendants. It may be used when the plaintiff settles with only one defendant and does not prevent the plaintiff from proceeding against the other defendants. |
| Return to top |
Damages
Money receivable through judicial order by a plaintiff sustaining harm, impairment, or loss to his or her person or property as the result of the accidental, intentional, or negligent act of another.
|
Daubert test
A method used by federal district courts, before trial and out of the hearing of the jury, to determine whether proposed expert testimony meets the requirements for relevance and reliability as clarified by the United States Supreme Court in Daubert v. Merrell Dow Pharms. Inc. 509 U.S. 579, 113 S.Ct. 2786 (1993). |
| Decedent
A dead person, usually the injured person, who would have been described as the plaintiff if still living. When probate administration is taken out, the fiduciary, called an executor or administrator, becomes the plaintiff and the injured person who has died is called the plaintiff’s decedent. |
| Defamation
Willful and malicious written (libel) or oral (slander) statement which is false and which damages another’s reputation. |
| Defendant
The person against whom a civil or criminal action is brought. |
| Demand
A plaintiff’s principal or primary claim against one or more defendants, contained in an original or amended pleading. A “demand letter” is a letter by which one party explains its legal position in a dispute and requests that the recipient take some action, such as paying money, or else risk being sued. |
Deposition
Sworn, officially transcribed out-of-court testimony of a witness or party taken before trial.
|
| Directed verdict
A judgment entered by order of the trial judge who takes over the fact-finding role of the jury because the evidence is so compelling that only one decision is possible, or because the plaintiff has failed to establish a prima facie case. |
| Disability
Inability to perform some function, usually due to demonstrated mental or physical impairment. |
| Discovery
Pretrial activities of the parties to litigation to learn of evidence known to the opposing party or various witnesses in order to minimize surprises at the time of trial. |
| Due care
That degree of care that a prudent and competent person engaged in the same profession would exercise under similar circumstances. A test for liability for negligence. Also called reasonable care. |
| Due process
Course of legal proceeding according to those rules and principles which have been established for the enforcement and protection of private rights. Includes notice and the right to a fair hearing before a court with the power to decide the case. |
| Duty
An obligation recognized by the law. For example, where the patient-physician relationship exists, the patient has a right to be attended and treated by the physician according to the required standard of care and the physician has a correlative duty to provide such care. |
| Return to top |
| Evidence
All the means by which any alleged matter of fact, the truth of which is submitted to investigation at trial, is established or disproved. Evidence includes the testimony of witnesses, introduction of records, documents, exhibits, objects or any other probative matter offered for the purpose of inducing belief in the party’s contention by the judge or jury. |
| Executor
Person appointed to carry out the directions and requests in the will of the decedent. |
| Expert Witness
Person who has special training, knowledge, skill, or experience in an area relevant to resolution of the legal dispute and who is allowed to offer an opinion as testimony in court. |
| Extended reporting endorsement
Commonly known as tail coverage, the extended reporting endorsement is a supplemental policy obtained from a claims-made carrier to provide coverage for any incident that occurred while the claims-made insurance was in effect but had not been brought as a claim by the time the insurer/policyholder relationship terminated. |
| Return to top |
| Fiduciary
Person in a position of confidence or trust who undertakes a duty to act for the benefit of another under a given set of circumstances. |
| Foreseeability
Reasonable anticipation that harm or injury is a likely result of acts or omissions. |
| Fraud
Intentionally misleading another person in a manner that causes damage or injury to that person. |
Frivolous suit
A lawsuit which the plaintiff knows has no legal basis, often brought to harass or to extort money from the defendant. |
| Future earnings
Element of damages involving the specific “loss” of earnings that would probably have been made during a given future time had it not been for the injury that is the basis of the lawsuit. |
| Return to top |
| Good faith
Honest intention to deal fairly, such as in a contract negotiation, and to abstain from taking advantage of another. |
| Good Samaritan statute
A statute, some form of which has been enacted in all 50 states and the District of Columbia, which exempts from liability a person, such as a physician passer-by, who voluntarily renders aid to an injured person but who negligently, but not unreasonably negligently, causes injury while rendering the aid. |
| Guardian
Person recognized by law or appointed by a court to manage the affairs and to protect the interests of another who is adjudged incompetent by reason of age, physical or mental status, and who is thereby unable to manage his or her own affairs. |
| Return to top |
Hearsay
Evidence which does not proceed from the personal knowledge of the witness, but is a repetition of an out-of-court statement and is offered to prove the truth of the matter asserted. The general rule, subject to various exceptions, is that such statements are inadmissible because they rely on the truth and veracity of outside persons not present for cross-examination. |
Hold harmless agreement
A clause in some contracts and leases that attempts to shift liability from one party to another (for example, from a medical equipment manufacturer to a health care provider who purchases the equipment) or from a managed care corporation to a physician provider. Courts may modify or refuse to uphold such agreements if they are deemed harmful to the public or if the parties are perceived to have unequal bargaining power. |
Hypothetical question
A form of question put to a witness, usually an expert witness, in which claims one party asserts are true or will be proven are stated as a factual supposition and the witness is asked to respond and explain the conclusion based on the assumptions and question. |
| Return to top |
Immunity
In civil law, protection given certain individuals (personal immunity) or groups (institutional immunity) that may shield them from liability for certain acts or legal relationships. Ordinarily, the individual may still be sued, because immunity can be raised only as an affirmative defense to the complaint. Immunity is generally awarded only in a narrow range of circumstances necessary to achieve some important public good. |
Impairment
Measurable dysfunction of a person. |
Imputed negligence
Negligent acts of another person are assigned to the party charged, because of a legal relationship with the other person. For example, a doctor is liable for the negligent acts of his or her office employees acting within the scope of their employment. |
Incapacity
Inability and preclusion of exercising an inherent right or carrying out a transaction because of a legal impediment or impairment. |
Incompetency
Inability of a person to manage his or her own affairs because of mental or physician infirmities. If this status or condition is legally determined, a guardian will usually be appointed to manage the person’s affairs. |
Indemnity agreement
Agreement whereby a party shifts responsibility for economic loss or potential liability and the other party guarantees reimbursement for possible losses. |
Independent contractor
Person who agrees with a party to undertake the performance of a task for which the person is not expected to be under the direct supervision or control of the party. Ordinarily this arrangement and relationship shields the party from liability for negligent acts of the independent contractor that occurred during the performance of the work. For example, a medical consultant is an independent contractor for whose negligent acts the attending doctor is not liable. |
Informed consent
A legal doctrine that requires a physician to obtain a patient’s voluntary agreement to accept treatment based upon the patient’s awareness of the nature of his or her disease, the material risks and benefits of the proposed treatment, the alternative treatments and risks, or the choice of no treatment at all. The general, or more modern version permits the jury to decide whether the physician disclosed enough information for a reasonable patient to make an informed choice about treatment. The professional, or older version permits physicians to testify whether the defendant physician disclosed sufficient information according to community standards of medical practice. |
Injunction
Court order commanding a person or entity to perform or to refrain from performing a certain act, or otherwise be found in contempt of court. The person seeking the injunction must show that an irreparable injury will result unless the injunction is granted. |
Injury
Damage or harm done to an individual by violating such individual’s legally protected person or property. |
Insurance
Written agreement (the insurance policy) wherein, for premium payments, the insurance company (the insurer) promises to compensate the policyholder (the insured) for losses that occur as defined in the agreement. |
Intent
Voluntary function of a person’s mind in purposely performing a perceivable act. |
Intestate
One who dies leaving no valid will. |
Interrogatories
Written questions which must be answered under oath, propounded by one party to another before trial as part of the pretrial discovery procedures. |
Invasion of privacy
Violation of person’s right to be left alone and free from unwarranted publicity and intrusions. |
| Return to top |
Joint and several liability
Liability that may be apportioned among two or more defendants, or to one or a few select defendants. Each liable defendant is individually responsible for the entire obligation but may have a right to indemnification from non-paying defendants. |
Judgment
A court’s final action which settles the rights of the parties and disposes of all issues in controversy except for certain costs. It is binding unless it is overturned or modified on appeal. |
Judicial opinion
Written statement by a court explaining its decision in a given case. |
Jurisdiction
Authority by which courts and judicial officers take cognizance of and decide cases. |
Jury
Individuals who are chosen to decide questions of fact. Jurors function under supervision of a judge. Their verdict may be set aside if, in the judge’s opinion, it is contrary to law or evidence. |
| Return to top |
Law
In common law areas, such as the United States, the body of law derived from legislation, judicial decisions and accepted legal principles, which provides authoritative grounds for judicial and administrative decisions. Unlike civil law, common law is not usually based on a legislatively enacted code. |
Lawsuit
Civil legal action or adversarial proceeding by which a plaintiff seeks enforcement of his or her rights or redress for the transgression of them by a defendant. |
Leading case/precedent case
Case decision wherein the courts have definitively determined the law on the issues involved, and, as a result, the case is viewed as being an important precedent for the same issues in subsequent cases. |
Liability
Obligation that a person has incurred or might incur through any act or omission. In civil matters, liability for damages is for a definite amount that is determined by a final judgment based on the preponderance of the evidence that demonstrates that the defendant was responsible for the plaintiff’s injury and, therefore, is obligated to provide compensation to the plaintiff. |
Libel
Defamation of person’s reputation or character by any type of publication, including pictures or written word. |
License
Permit from an appropriate governmental agency allowing certain acts to be performed, usually for a specific period of time. |
Litigation
The process of carrying on a lawsuit, or the lawsuit itself. |
Locality rule
The test historically used by courts to determine the standard of care owed by health care providers to patients. The rule holds that health care providers have the duty to render care consistent with the care of other competent or prudent practitioners under the same or similar circumstances in the same or similar community. Most states have displaced the locality rule with the requirement that care must be consistent with national standards. |
Loss of consortium
Element of damages sought by the spouse of an injured party for the loss of services, comfort, society and conjugal relations because of the spouse’s injury. |
| Return to top |
Malice Unjustified, inexcusable intent to commit a wrongful, legally evil act. |
Malicious prosecution
Institution of a legal proceeding filed in bad faith and without probable cause. If the defendant prevails, he or she may sue for tort damages. |
Malpractice
In the case of a physician, failure to exercise the degree of care and skill that a physician or surgeon of the same specialty would use under similar circumstances. Professional negligence. |
Material
Having some logical connection to the consequential facts; significant; essential. |
Matter of fact
Issue that must be decided on the factual testimony of witnesses regarding their perceptions, or by other direct evidence acceptable to the court. |
Matter of law
Issue that must be decided by the judge on the basis of either applicable statute or decisions of case law. |
Mediation
A method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution. Increasingly, in certain civil cases, federal and state courts are encouraging/ordering mediation before permitting parties to proceed to trial. |
Medical judgment
The utilization of medical knowledge through the exercise of the mind. The requirement that a physician use his or her best judgment in the formation of a diagnostic or therapeutic opinion is predicated or grounded on the possession of some knowledge referable to the medical condition in question and the exercise or application of skill in a careful and diligent manner. |
Minor A person who has not yet reached the statutorily determined age (in most states, age 18) of legal capacity. As a result of this presumed legal incompetence, minors ordinarily cannot consent to their own medical treatment unless they are “emancipated,” that is, self-supporting and independent of parental control usually as a result of a court order. |
Misrepresentation
The making of a false or misleading statement, usually with the intent to deceive; an assertion that does not accord with the facts.
|
Motion
Written or oral request to a judge to make a specific order or ruling affecting the lawsuit. |
Motive
Reason that induces a person to perform an act. |
| Return to top |
National standard of care
A duty to exercise that degree of care and skill expected of a reasonably competent practitioner in the same specialty acting under similar circumstances. In most places, the national standard has replaced the locality rule as the standard of care applied in medical malpractice suits. |
Negligence In medical malpractice cases, a legal cause of action involving the failure of the defendant physician to exercise that degree of diligence and care that an average qualified physician practicing in the same specialty as that of the defendant physician would have exercised in a similar situation, and which has resulted in the breach of a legal duty owed by the physician to the patient which proximately caused an injury which the law recognizes as deserving of compensation (damages). |
Negotiation Communication, often between the party’s attorneys, for the purpose of reaching an understanding. |
Nonsuit A judgment given against a plaintiff when he is unable to prove a case or when he neglects to proceed to trial. |
Nose coverage A supplement to a “claims-made” insurance policy that may be purchased by a professional from a new carrier when the professional changes carriers and had claims-made coverage with the previous carrier. A nose policy, also known as “prior acts” coverage, covers incidents that occurred prior to the beginning of the new insurance relationship, but which have not yet been brought to the professional’s attention as a claim. Nose coverage is an alternative to an “extended reporting endorsement,” also known as “tail coverage,” which is purchased from the original carrier when a change in carriers is made. |
| Return to top |
Opinion evidence Type of evidence that an expert witness usually gives, based on his special training or background rather than on personal knowledge of the facts in issue. Generally, if an issue involves specialized knowledge, only the opinions of experts are admissible as evidence. |
| Return to top |
Pain and suffering Element of “compensatory” noneconomic damages that allows recovery for the mental anguish and/or physical pain endured by the plaintiff as a result of injury for which the plaintiff seeks redress. |
Partnership Voluntary agreement of two or more associates (partners) to engage in a commercial enterprise for the benefit of all co-partners, and to share the profits and losses proportionally or according to an agreed-upon percentage. Each person acts as a principal as well as an agent for his co-partners. Thus, where losses occur, each partner is personally responsible for the payment of all partnership debts. |
Patient compensation fund A fund established by law in a few states that pays benefits to patients injured in the course of medical treatment. Benefits may be awarded on either a fault basis or a no-fault basis, depending on the state program. The fund’s benefits may either supplement the payment made by a defendant in a medical malpractice claim or be the primary compensation, again depending on the state program. |
Perjury Deliberately giving of false testimony under oath. |
Plaintiff Party who files or initiates a civil lawsuit in a court of law seeking relief or compensation for damages. |
Pleadings A formal document by which parties to a dispute frame the issue for the court. The plaintiff’s complaint is followed by the defendant’s answer, and subsequent papers are filed as needed. |
Possibility A less than 50% chance that something occurred. Contrast with “probability,” a more than 50% chance. |
Preponderance of evidence The greater share (more than 50%) of the weight of the total evidence in support of or in defense of a legal claim. In medical malpractice cases, a plaintiff must prove negligence by a preponderance of the evidence in order to prevail. |
Presumption Legal inference drawn by the jury on the basis of other facts that are proven. A “presumption of law” is a legal inference that a judge draws from the facts of evidence. |
Pretrial screening A tort reform procedure established in a number of states to require or encourage plaintiffs alleging medical malpractice to participate in an activity for determining if the claim is unfounded or has merit prior to pursuing litigation in the courts. States differ in the structure of the pretrial screening process, the type of evidence that will be reviewed, and in the rules regarding whether the pretrial screening conclusion is admissible as evidence in subsequent litigation. |
Prima facie case A complaint that contains all the necessary legal elements for a recognized cause of action and will suffice until contradicted and overcome by the defendant’s evidence. In a medical negligence case, four distinct elements are necessary to prove negligence as a cause of action: (1) that the physician owed a duty or a standard of conduct to the injured party; (2) failure by the physician to conform to that duty or standard of conduct; (3) a link showing that the failure was a ‘proximate cause’ of the injury to the complaining party; and (4) actual loss or injury that can be measured for compensation in money damages. |
Prima facie evidence Evidence that is sufficient to establish a fact, and if not rebutted, becomes conclusive of that fact. |
Privilege A special legal right, exemption or immunity enjoyed by a person or class; an exception to a duty. Physician-patient privilege is the right to exclude from evidence in a legal proceeding any confidential communication that a patient makes to a physician for the purpose of diagnosis or treatment, unless the patient consents to the disclosure. |
Probability A more than 50% chance that something occurred. Contrast with “possibility,” a less than 50% chance. |
Probate court Court having jurisdiction of the estates of deceased persons and persons under guardianship. |
Proximate causation An act or failure to act, unbroken by any intervening act, that directly produces an event and without which the event would not have occurred. Also called direct cause. Essential element in a legal cause of action for negligence as it must be shown that the alleged negligent act was the immediate cause of the injury for which legal damages are sought. |
Proximate cause Act or omission that, uninterrupted by any intervening cause, directly results in an injury that otherwise would not have occurred, or else becomes a substantial factor in causing an injury. |
Publication Oral or written act that makes defamatory material available to persons other than the person defamed. |
| Return to top |
Qualification The credentials or presumed capability of a professional to perform a task. |
| Return to top |
Real evidence Physical evidence such as an x-ray or an incisional scar. |
Reasonable Fit and appropriate to the end in view; not immoderate or excessive. |
Reasonable act An act which may fairly, justly and reasonably be required of or performed by a person. |
Reasonable medical certainly or probability That there is a greater than 50% chance that the injury was caused by a particular stimulus, and that the opinions and ideas rendered are based on the general consensus of recognized medical thought. An overwhelming likelihood or scientific certainty (100% chance) is not required to term such a statement “reasonable medical certainty.” |
Reasonable person Hypothetical person used as an objective test or standard against which a defendant’s conduct in a negligence action will be judged. Not the standard for professional negligence in a medical malpractice action which requires expert opinion that the defendant doctor failed to comply with the standard of the average qualified physician in the same medical specialty. |
Release
Statement signed by a person relinquishing a right or legal claim against another person or persons usually for a payment or other valuable consideration. The intent is that the person’s alleged injury has been fully satisfied. It is to be distinguished from a covenant not to sue.
|
Res ipsa loquitur “The thing speaks for itself.” A doctrine that may be invoked in a negligence action when the plaintiff has no direct evidence of negligence but the injury itself leads to the inference that it would not have occurred in the absence of a negligent act. The doctrine is applicable to cases where the defendant had exclusive control of the thing that caused the harm to the plaintiff, where the harm ordinarily could not have occurred except as a result of negligent conduct, and where the plaintiff did not contribute to his own injury. It raises an inference of the defendant’s negligence, thereby altering the burden of proof so that the defendant must produce evidence that he did not commit a negligent act. |
Res judicata An issue that has been definitely settled by a judicial decision. |
Respondeat superior “Let the master answer.” A doctrine of vicarious or derivative liability in which the employer (master) is liable for the legal consequences of the breach of duties by an employee (servant) that the master has promised to others, if the breach of duty occurs while the servant is engaged in work within the scope of his or her employment. For example, a hospital is liable for the negligent acts of a nurse it employs, if the acts occurred while the nurse was working within the nurse’s job description. |
Right A legally enforceable claim that another will do, or will not do, a given act. A recognized or protected interest, the violation of which is a wrong. |
Risk Retention Groups An owner controlled insurance company authorized by the federal Liability Risk Retention Act of 1986. A risk retention group allows members in the same or related businesses to write liability insurance for themselves. The company must be licensed in one state. Federal law preempts state law in many significant ways. Relevant advantages include: avoidance of multiple state licensing, regulation and oversight requirements; and control of litigation and risk management issues by the members themselves. Relevant disadvantages include: no availability of state guaranty fund (insolvency fund) coverage; and in some states, inability to comply with “proof of financial responsibility” laws. |
| Return to top |
Settlement Agreement usually involving an exchange of money for a release of the right to sue made between opposing parties in a lawsuit which resolves their legal dispute. |
Slander Oral defamation by speaking or uttering false and malicious words in the presence of a person, other than the person slandered, which prejudices another person’s reputation and character. |
Standard of care Measure against which a defendant’s conduct is compared. The required standard in a professional negligence or medical malpractice case is the standard of the average qualified practitioner in the same medical specialty. |
Statute of limitations Statutes that specify the permissible time interval between the occurrence or discovery of the injury (giving rise to a civil cause of action) and the actual filing of the lawsuit. Thus, failure to file the suit within the prescribed time limits may become an affirmative defense to the action. |
Statute of Repose
A statute which bars a suit a fixed number of years after acts in some way allegedly negligently injured a patient. |
Stipulation An agreement entered into between opposing counsel in a pending action concerning some relevant point. |
Subpoena Court order requiring a person to appear to give testimony. |
Subpoena duces tecum A court order requiring a witness to appear and to bring specified documents or records in his or her possession or under his or her control. |
Subrogation A legal term referring to the substitution of one person for another in reference to pursing a legal claim. For example, where one insurer pays damages that may also be covered by another insurer’s policy, the paying insurer will obtain a subrogation right from the insured to pursue the insured’s claim against the insurer who has not yet paid. |
Substantive law Law which creates, defines, and regulates legal rights, as distinguished from procedural law, which prescribes the procedures under which substantive law is administered. |
Suit See Lawsuit. |
Summary judgment Pre-verdict judgment rendered by the court in response to a motion by a plaintiff or a defendant, who claims that the absence of factual dispute on one or more issues eliminates those issues from further consideration. This procedural device allows the speedy disposition of a controversy without the need for a trial. |
Summons A writ or process commencing the plaintiff’s action and requiring the defendant to appear and answer. A notice served on a defendant in a civil action to secure his or her appearance in the action. |
| Return to top |
Tail coverage See Extended Reporting Endorsement. |
Testimony Oral evidence presented under oath in an affidavit, at deposition or trial by a competent witness in order to prove a fact. It is to be distinguished from non-oral types of proof, such as physical evidence (document, etc.). |
Tort Civil wrong in which a person has breached a duty to another, which in a medical malpractice case, requires proof of the following: that a legal duty was owed to the plaintiff by the defendant; that the defendant breached that duty; and the plaintiff was injured as a proximate cause of that breach; and as a result suffered actual loss or injury that can be measured for compensation in money damages. |
Trial A formal judicial examination of evidence before a court having jurisdiction and the determination of legal claims in an adversary proceeding. |
Trier of fact Jury, or in the case of trial without a jury, the judge. |
| Return to top |
Verdict Formal and binding and findings made by a jury regarding all matters of fact submitted to them for their consideration and determination. See Jury. |
Vicarious liability Liability that a supervisory party such as an employer bears the conduct of a subordinate or associate such as an employee because of the relationship between the two parties. See Imputed Negligence and Respondeat Superior |
| Return to top |
Waiver Express or implied voluntary relinquishment of a legal right. For example, a waiver might allow a person to testify to information that would ordinarily be protected as a privileged communication. |
Wanton Conduct which by its grossly negligent, malicious, or reckless nature evinces a disregard for the consequences or for the rights or safety of others. |
Willful Voluntary and intentional. Frequently used interchangeably with “wanton.” |
Witness Person who is called to give testimony in a court of law. |
Written authorization Consent given in writing, specifically empowering someone to do something. |
Wrongful death Lawsuit brought on behalf of a deceased person’s survivors that alleges that death was attributable to the willful or negligent act of another.
|
| Return to top |
This page was last updated June 15, 2004
©2001 - 2005 by the American Academy of Orthopaedic Surgeons. " All Rights Reserved."
This website and its contents may not be reproduced in whole or in part without written permission.
Editorial Board | Technical Requirements | Legal Disclaimer | Contact OKO | Help | AAOS Privacy Policy