March 6, 2024 – Medical malpractice litigation is complex and comes with procedural requirements and ethical standards. Where do you begin your research?
Tort law is a good place to begin, because malpractice litigation usually involves negligence theory.1 If you are new to this area of law, nutshells, hornbooks, and – recently published by the American Law Institute as a tentative draft – the
Restatements of Law Third Torts: Medical Malpractice, will provide you with a general understanding of this topic.
However, in addition to being a complex area of litigation, efforts to reduce costs and liability can change the landscape of this type of litigation. For example, the tort reform movement led many states, including Wisconsin, to limit damages awards.
Genevieve Zook is the reference & instructional services librarian at the U.W. Law Library. She is currently chair of the Public Relations Committee and past president of the
Law Librarians Association of Wisconsin, a chapter of the American Association of Law Libraries.
The arrival of a newly approved medical device or drug to the market or changes made to the health industry by AI could similarly alter the complexity of litigation.
Another consideration with medical liability law research: you will need resources outside the usual scope. You may, for example, find a medical dictionary or medical encyclopedias written in plain English necessary to explain a complex medical procedure to a jury. Fortunately, the major legal databases provide medical dictionaries and other medical tools for research.
Study Aids, Nutshells, and Hornbooks
To learn more about medical malpractice, here are a few introductory resources.
Hornbook on Torts – See Chapter 21: Liability of Medical Professionals. Available at the U.W. Law Library.
Introduction to Tort-Based Healthcare Litigation, edited by Caldwell G. Collins and Robert A. Chu, 2021. Available at the U.W. Law Library.
There are two nutshells that cover medical malpractice:
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Medical Liability in a Nutshell (2017) and
Torts in a Nutshell (2020) – Nutshells are available in print at all three Wisconsin law libraries.
Treatise, Books, and CLE on Medical Malpractice
There are several general treatises on medical malpractice.
Medical Malpractice Checklist and Discoveryis a four-volume set available at the Wisconsin State Law Library, last updated September 2023. This treatise is also
available online in Westlaw Precision.
Dobb’s Law of Torts, 2nd edition, West Publishing, 2011. Chapter 25 covers health care providers generally and Chapter 26 covers hospitals, managed care organizations, and elder care facilities. This treatise is
available at the U.W. Law Library and on Westlaw Precision.
Lexis+ offers a Matthew Bender treatise:
Medical Malpractice Guide to Medical Issues, 2023.
Bloomberg Law provides health law resources in their “Practical Guidance” database
Litigation, Overview – Anatomy of a Medical Malpractice Case.
There is a draft published in the Restatement of the Law, Torts, 3rd, Medical Malpractice, no. 1, 2023, which is available at all three Wisconsin law libraries.
State Bar of Wisconsin PINNACLE® Resources: A discussion of medical malpractice was part of the CLE program,
45th Annual Torts Update 2022, available OnDemand from WisBar’s Marketplace. The PINNACLE book,
Mental Health Law in Wisconsin: A Guide for Legal and Healthcare Professionals, discusses malpractice in Chapter 7: Legal Duties and Responsibilities of Mental Health Professionals.
Dictionaries and Other Medical Tools
Both Nexis Uni2 and Lexis+ have theAttorneys’ Dictionary of Medicine, which includes images, and offers an encyclopedia approach to definitions. The dictionary also includes pharmaceutical entries. Use the permalink to quickly find this resource at a U.W. campus library or if you have a subscription to
Lexis+.
Westlaw Precision’s practice area, “medical litigation” has resources on medical malpractice, including the Litigation Reporters & Expert Material. The database also includes
Stedman’s Medical Dictionary and the International Classification of Diseases, 10th edition.
Legal and Medical Journals
If from different perspectives, both medical and legal journals address medical liability as a topic. Here are a few databases where you can research medical malpractice.
Legal Databases
HeinOnline – HeinOnline has a collection of
Health & Safety Journals.
Fastcase – As a reminder, as a member of the State Bar of Wisconsin, you have access to HeinOnline through the Fastcase database, and if you apply for a
Wisconsin State Law Library card, you also have remote access to HeinOnline.
Internet Resources
You can search for articles on
Google Scholar, which covers both medical and legal journals. But for a full-text copy, you will usually need to find a library that subscribes to the journal.
PubMed and other medical journal databases are available at U.W.’s Ebling Library for the Health Sciences and
through the National Library of Medicine.
Federal Resources: U.S. Department of Health and Human Services
The U.S. Dept. of Health and Human Services has a
Laws & Regulations webpage.
National Library of Medicine
Medpix is an imaging database available through the National Library of Medicine. This free database has over 59,000 indexed and curated images from over 12,000 patients.
Congressional Research Service:
If you are searching for military medical malpractice information, the Congressional Research Service has a report on
Military Medical Malpractice and the Feres Doctrine,
CRS In Focus.
From the report, “The National Defense Authorization Act for Fiscal Year 2020 (NDAA)” created a limited exception to the Feres doctrine “for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a Department of Defense health care provider.”
Wisconsin Statutes3
Wisconsin Administrative Code
Forms
See Westlaw’s Wisconsin Pleadings & Practice – Medical Mediation Forms 5:43
Library Research Guides
50-State Surveys
50-state surveys cover medical malpractice. These surveys are available on the major legal databases and in HeinOnline’s
Subject Compilation of State Laws: Medical Malpractice.
If your research is out of state, the ABA publishes for free
Plaintiff’s Medical Care and Treatment – Discovery and Evidentiary Issues.
The University of Missouri School of Law has a 50-state survey guide that might prove helpful as well and it is freely available:
Medical Malpractice: Other Jurisdictions.4
Where to Find Out More
Ask a librarian for help! We are trained to assist patrons with finding and using the best resources for them and their unique legal research topics. Law librarians are available at these Wisconsin libraries:
Endnotes
1 Edward J. Kionka,
Torts in a Nutshell, 7th ed. (2020), p. 361.
2 Nexis Uni is available to the public at every U.W. campus library. For access ask for help at the Reference Desk.
3 Wisconsin statute citations were pulled from the
Wisconsin State Law Library Guide: Medical Malpractice.
4 This guide links to a 2016 news item that has an interesting claim regarding Wisconsin:
Medical malpractice lawsuits nearly impossible to win in Wisconsin.
