Medical Malpractice: A Definition

Medical malpractice refers to a tort (a civil wrong) occurring when a certified healthcare professional, such as a doctor, nurse practitioner, or physician’s assistant, fails to follow relevant medical standards and harms a patient accordingly. The harm might be direct, such as causing nerve damage during an epidural, or indirect, such as failing to treat an infection. Every state has different laws related to bringing claims for medical negligence.

Examples of Medical Malpractice Claims in the United States

A medical malpractice lawyer might help injured claimants or their families determine whether or not they have a case for medical negligence.

Common examples of claims against doctors and hospitals include:

• Missed diagnosis or diagnoses – Failing to order certain tests, review a patient’s medical records, take a thorough patient history, or recognize common symptoms often leads to an incorrect diagnosis. Examples include sending patients home instead of to the hospital, miscategorizing cancerous growths, prescribing medication for the wrong condition, or failing to spot birth anomalies on ultrasounds.
• Birth and prenatal mistakes – Failing to perform timely C-sections, unravel an umbilical cord, discover a prenatal genetic condition, or treat preeclampsia may lead to a stillbirth, infertility, or cerebral palsy. Improperly performed epidurals or birthing placement might also cause spinal and nerve damage during labor.
• Surgical and anesthesia errors – Examples include operating on the wrong patient, removing the wrong body part, leaving surgical tools inside a patient, making a mistake during the procedure, or causing an infection due to unsterilized equipment. Too little anesthesia may cause a patient to wake during surgery, and too much may cause brain damage or death.
• Prescription drug and dosage miscalculations – Medical professionals may administer the incorrect drug, prescribe unmixable medications, or calculate the wrong dosage.
• Ignoring critical lab results – Overworked doctors may inadvertently skim over or ignore abnormal test results indicating serious conditions. Such oversight might also happen when doctors incorrectly read ultrasounds, resulting in the birth of a child with serious genetic disorders.
• Failing to provide necessary care – Nursing home malpractice often results from ignoring patient needs, resulting in bedsores, infections, amputations, and malnutrition. Doctors may also fail to attend patients or perform surgeries in a timely fashion, such that conditions worsen.

Injured patients or their families might recover money damages if a medical professional’s carelessness resulted in pain, suffering, death, or other financial losses. The damages might include recovering compensation from a medical practice or hospital that employed the physician.

Elements of Proof in a Traditional Medical Negligence Case

Plaintiffs have the burden of showing that medical negligence occurred.

Generally, claimants must prove these four elements of medical malpractice to recover compensation from negligent healthcare providers:

• Duty – The medical professional was licensed in the state, and the injured person was a patient under the professional’s care.
• Breach of duty – The doctor failed to follow accepted medical procedures in their field of practice.
• Causation – As a result of the doctor’s failure to follow accepted procedures, the patient suffered additional and unnecessary harm.
• Damages – The doctor’s breach caused the patient direct or indirect losses, including additional medical bills, lost wages, and mental anguish.

Because patients commonly seek medical treatment while suffering from preexisting conditions, proving a claim for medical malpractice often requires expert testimony. Other qualified medical professionals must generally help claimants separate the misconduct from the original injury or illness.

For example, the family of a woman who died of a misdiagnosed but otherwise treatable breast cancer likely has a malpractice claim against her physician; however, a woman who died of the same cancer despite early diagnosis and rigorous treatment would not. The treating doctors must have deviated from accepted practice standards in some critical way to sustain a medical malpractice claim.

Medical Professionals with a Legal Duty to Patients

Private doctors may decline to treat patients. As such, claimants cannot typically bring malpractice cases against medical professionals unless they were legally under that professional’s care. For example, a doctor who refuses to see a new patient likely had no duty to a man suffering from a heart attack. The professional must objectively assume some authority over the patient’s care, but private healthcare workers also have the right to decline continued treatment and advise patients to find another physician.

Further, the state must recognize the healthcare provider as a licensed professional. Medical professionals subject to medical malpractice claims commonly include:

Most CNAs, nurses’ aides, dental assistants, and private caretakers are not required to hold a license to provide services. As such, claimants injured by negligent homecare workers likely have a general negligence claim rather than a medical negligence case. An attorney may help claimants determine the appropriate legal action to bring after suffering from an unlawful injury.

Defining “Accepted Medical Standards” in Medical Negligence Cases

The majority of medical malpractice litigation centers on determining whether licensed professionals breached their duty of care. Before deciding if a breach occurred, courts must first establish the appropriate standard of care. The standard of care is subject to change, based on the doctor’s experience, location, area of practice, and unique factors related to each case. Evidence used to establish this legal standard typically includes medical textbooks, articles and clinical studies, hospital policies and procedures, and expert testimony.

Some cases have clear textbook guidelines, such as failing to operate on the correct knee. In most cases, however, professionals of the same experience in the same field must testify about the appropriate standard of care. Choosing the right expert witnesses can make or break a medical malpractice case.

A good rule of thumb is to ask whether the injured claimant would have received the same treatment or advice from another similar but competent doctor. If most doctors would have missed a difficult diagnosis, the patient probably does not have a medical malpractice claim. Courts must also consider the doctor’s resources and experience level.

Claimants may not generally use the existence of groundbreaking treatment in a large city to support a medical malpractice claim against a physician without access to those resources. The same is true of experience level. Patients may not rely on a world-renowned surgeon’s testimony to support a claim against a young doctor at a local hospital.

Standards Governing Malpractice During Medical Emergencies

Paramedics, emergency room personnel, and doctors responding to pandemics often enjoy a more relaxed standard of care. Sometimes emergency room doctors must treat patients without knowing their medical history or waiting for lab results. The question in those cases generally turns on whether another competent doctor would have responded to the emergency similarly or the doctor caused more significant harm.

For example, a single doctor treating three life-threatening conditions might have protection from liability for failing to provide complete care to one patient. Patients injured in emergency rooms or while receiving emergency response care should consult with a legal professional about their options for financial recovery.

Other Claims Commonly Associated With Medical Malpractice Litigation

Personal injury plaintiffs might have multiple claims against different parties arising from the same injury or illness. Numerous cases may require bringing a case for medical negligence in combination with other legal causes of action. If paramedics, caregivers, or nursing home administrators contributed to an injury, patients in some states must bring ordinary negligence claims.

Many patients injured by a medical provider might also have a case for:

• General negligence – This occurs when an ordinary person (non-professional) causes the claimant an injury by acting with less care than a reasonable person should have. General negligence might support a case against a nurse’s aide, nursing home workers, or unlicensed medical assistants.
• Premises liability – Plaintiffs might recover for slips and falls leading to broken hips and other injuries at nursing homes or hospitals.
• Product liability – Malfunctioning medical implants or dangerous prescription medications might give rise to a claim against the manufacturer, distributor, or designer of the medical product. Claimants injured because a pharmaceutical company failed to warn of specific side effects might recover damages under this theory.
• Battery (lack of informed consent) – In non-emergencies, doctors must generally get permission to touch or operate on a patient. Patients or their legal guardians also have the right to understand the risks associated with any recommended treatment, such as surgery, medication, or non-treatment. Failing to warn patients of known risks or pretending to be a licensed medical professional might give rise to a civil battery claim for unlawful touching, as when a patient would not have agreed to the procedure or treatment had they known the actual risk.
• Wrongful death – If a patient dies due to medical malpractice, their estate may recover damages for the patient’s unlawful passing under this cause of action

A medical malpractice attorney might help a patient injured by medical professionals and the patient’s family understands which legal claims apply to their cases. Doctors might also bring in other parties, such as pharmaceutical companies, to claim a product caused the most harm.

Financial Damages Recoverable in Medical Negligence Cases

Most doctors, private practice cooperatives, and hospitals carry medical liability insurance. Injured patients may work with malpractice attorneys and medical experts to gather treatment records and provide claim’s adjuster with medical and economic impact analysis. Submitting evidence of malpractice to an insurer might result in a single insurance payout for medical negligence without judicial intervention.

If an insurance company refuses to provide coverage or admit liability, injured claimants might file a medical negligence case. Successful litigants may request economic and non-economic damages stemming from the malpractice. Financial recoveries commonly include compensation for medical bills, lost wages, pain, mental suffering, and missed career opportunities. Spouses might also recover compensation for the loss of their loved one’s companionship or financial support.

An attorney may help clients gather necessary proof of economic loss, such as medical expenses, and develop their claims for pain and suffering damages.

Timeframe for Bringing Medical Malpractice Claims

Most states require plaintiffs to file a case for medical malpractice within a specific timeframe, typically two to four years. The statute of limitations traditionally begins running once the malpractice occurs or when the patient discovered the injury, such as from a second diagnostic opinion. Special rules also apply if patients underwent a continuing course of treatment or multiple medical professionals contributed to the malpractice.

Patients might even extend the statute of limitations if a doctor injured them as children or a physician tried to cover up their negligence. You should discuss your financial recovery options with a local personal injury lawyer, even if the negligence occurred years ago.

Legal Fees and Costs Associated With Medical Negligence Litigation

Many wrongfully injured patients do not seek legal help because they cannot afford an attorney. Medical negligence litigators understand that it’s often impossible for clients to pay for legal services, court costs, and expert witness fees while simultaneously struggling with mounting medical debt and lost wages. As such, most personal injury lawyers accept malpractice cases on a contingency fee basis.

A contingency fee arrangement allows lawyers to take a pre-agreed portion of a successful plaintiff’s malpractice recovery. Some states regulate or cap this percentage based on the patient’s overall financial award. Firms may also front filing fees and expert witness costs during malpractice litigation. Accordingly, injured claimants might retain legal counsel without any upfront or out-of-pocket expenses.

Attorneys take the risk associated with this fee structure and may not recover fees and costs if they lose the case. Firms handling medical malpractice cases might also help clients negotiate a reduction to medical liens and file for disability benefits.

Consider speaking with local counsel if you believe your situation meets the definition of medical malpractice.