Medical Malpractice (Overview: What It Is And How It Works)

What is Medical Malpractice?

How to prove medical malpractice?

What are the essential elements you should know!

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What Is Medical Malpractice

Medical malpractice refers to a type of legal claim where an individual suffers damages or is harmed by the actions, conduct, or omission of a medical professional or doctor.

Doctors and medical professionals have a duty to perform their tasks and execute their functions in a diligent, skillful, and competent way.

When a doctor fails at such duties, the victim may file a lawsuit against the medical practitioner seeking compensation for the damages caused.

To prove a medical malpractice case, the plaintiff must demonstrate that:

• There was a doctor-patient relationship between the plaintiff and the doctor 
• The doctor was negligent
• The doctor’s negligence caused the injury to the plaintiff
• The plaintiff suffered damages due to the injuries suffered 

Lawyers dealing with medical malpractice are generally sought out legal professionals providing patients legal services and representation to file an insurance claim or lawsuit against a medical practitioner or defend against a claim.

There may be various rules and special procedures to follow to successfully bring a medical malpractice case forward.

For example, a medical malpractice lawsuit must be filed quickly, between six months to two years, depending on the state and applicable laws.

Also, before a lawsuit can be filed, a claim may need to be submitted to a malpractice review panel for a decision.

No doubt that in some cases, it may be difficult to qualify what constitutes medical malpractice.

Experienced and qualified attorneys and specialized law firms can provide the legal assistance to doctors and patients dealing with such legal claims.

Medical Malpractice Definition

According to MedicalNewToday, medical malpractice is defined as follows:

In other words, it’s when a health care provider fails to provide the right treatment or to medically take the right steps to appropriately deal with a person’s illness.

According to MedicalNewToday, there are between 15,000 to 19,000 medical malpractice suits filed against doctors every year.

With an ever aging population, it is reasonable to expect that these numbers will increase over time.

Medical Malpractice Lawsuit

In the United States, medical malpractice claims and lawsuits are quite common.

To win a medical malpractice lawsuit against a medical professional, the injured patient must legally demonstrate that there was “malpractice” or the physician acted in a negligent manner.

Typically, there are four elements to prove to successfully litigate a malpractice case:

• The doctor had a professional duty owed to the patient
• The doctor breached its duty to the patient
• The breach of the duty caused the patient injury
• The injury resulted in damages 

Professional Duty

To start with, the plaintiff must demonstrate that the medical practitioner had a duty owed to him or her.

For that, an individual must prove that there was a physician-patient relationship that was formed when the doctor acted negligently.

In other words, the plaintiff will need to show that he or she hired a doctor or agreed that the doctor be hired for a particular purpose.

It’s easy to show that a doctor owed a patient duty of care when the patient had clearly hired the doctor and the doctor was treating the patient.

However, it may be more difficult when a doctor is sued when he or she did not directly treat the patient.

Breach of Duty

The second element to prove is the doctor’s breach of professional duty owed to the patient.

To win medical malpractice claims, the injured person must prove that the doctor was negligent in the manner he or she provided treatment or with regards to the diagnosis.

That’s a high legal bar to achieve.

In essence, a doctor has a duty to act in a skillful and careful manner when rendering its medical services.

As such, an injured person will need to show that the doctor failed at providing services in a reasonably skillful and careful manner.

Medical experts may need to be mandated to review the actions and conduct of the doctor against the proper medical standards of care to determine if there was cause for negligence.

Injury

Once it is demonstrated that the medical professional owed a duty to the patient and there was a breach of such duty, the next step is to prove that the “negligence” caused injuries.

If the doctor misdiagnoses an illness or cancer and the patient suffers injuries or potentially dies, the element of “injury” is clear.

However, if the patient does not suffer any injuries, even if the doctor did something wrong, it may be difficult to win a lawsuit for malpractice in the medical field.

Damages

The fourth element to prove is “damages”.

The plaintiff must prove that the doctor’s negligence caused him or her injuries leading to damages such as medical expenses, surgery costs, need to purchase medical equipment, loss of wages and so on.

In cases involving personal injury, the plaintiff may seek actual economic losses (such as medical expenses) along with noneconomic losses (such as mental anguish, pain, suffering).

Typical economic losses are:

• Medical and hospital bills
• Medical treatments
• Rehabilitation expenses
• Physical therapy
• Ambulance expenses
• Medicine and prescription drugs
• Nursing home care
• Domestic services
• Medical equipment
• Lost wages or lost employment income
• Transportation

In addition to direct economic losses, noneconomic losses can include:

• Mental anguish
• Disfigurement
• Long-term physical pain and suffering
• Loss of consortium
• Inconvenience
• Loss of enjoyment of life
• Loss of opportunity
• Pain and suffering 

Medical Malpractice Cases

Let’s look at the common types of medical malpractice cases.

There are many medical scenarios and situations that can eventually lead to a legal claim or lawsuit.

Generally, the ‘malpractice’ claims against medical practitioners fall under three main categories:

• Negligent diagnosis 
• Improper treatment 
• Information on medical risks 

Failure to Diagnose

Doctors study many years and go through extensive training to properly diagnose a patient’s illness.

When a doctor should have diagnosed an illness but did not or when an illness was diagnosed the wrong way, it may result in catastrophic consequences for a patient.

If the patient suffers injuries (potentially fatal) due to a doctor misdiagnosing an illness or failing to diagnose the illness at all, the doctor can be legally held liable for the damages caused.

Improper Treatment

A doctor is required to provide the right and proper treatment to his or her patients.

When medical professionals fail in providing the right medication, prescribing the right dosage, or effects in combination with other drugs for example, a patient may suffer injuries.

A physician’s job is to ensure that the proper treatment is administered to the patient and in the proper manner.

Informed Consent 

Another reason why there may be medical malpractice lawsuits is due to the physician failing to adequately inform the patient of the risks associated with a particular treatment or operation.

This is referred to as the duty of informed consent.

A patient should be given the opportunity to weigh the pros and cons of any medical treatment before undergoing any particular procedure.

It is the doctor’s role to communicate and “inform” the patient of the possible risks associated with a medical procedure.

Otherwise, the doctor may engage his or her professional liability by failing to adequately offer the patient with relevant information to make a decision.

Malpractice Laws And Procedures

In the United States, every state may be different in their laws and procedures when dealing with claims against doctors.

Let’s look at some of the unique aspects that set professional malpractice claims targeting medical professionals apart from other types of claims.

Although you should consult a legal professional for your specific situation, here are the main aspects that must be considered when looking at medical malpractice laws and procedures to follow:

• Statute of limitations 
• Medical malpractice review panel
• Notice of malpractice
• Expert testimony 
• Limits and awards

Statute of Limitations

A person looking to file a claim against a doctor, physician, therapist, dentist, surgeons, nurses, midwives, radiologist, or any other medical professional must quickly determine the timelines set in law to validly sue.

Depending on the state laws, a patient may have anywhere from six months to two years to file a claim against a medical professional.

If you fail to respect the statute of limitations (legal timeline to file a claim), you may lose your ability to sue the doctor. 

In other words, filing a claim after the statute of limitations deadline has lapsed will result in the court dismissing your case.

Medical Malpractice Review Panel

The second element to consider is any special procedure required to be followed or observed.

For instance, many states require that a patient first submit their claim to a medical malpractice review panel.

The panel composed of experts will review the case, consider the evidence presented, and hear experts on the matter to decide if there is merit to the claim or not.

Ultimately, the medical malpractice review panel may determine that there was “malpractice” or not. 

Eventually, the patient may submit a lawsuit before the competent courts and file the panel’s report or findings as supporting evidence.

Notice of Malpractice

In some states, a “notice of malpractice” may be required to be given to the physician against whom a claim is intended to be filed.

The objective of this notice is to inform the medical professional in question that a person has the intention of filing a claim for malpractice and provide basic description of the nature of the claim.

Expert Testimony 

A very important element of any medical malpractice negligence targeting health professionals is the expert testimony.

In essence, the plaintiff (or patient) must prove that the healthcare professional failed in its duty to provide care. 

To make that evidence, an expert will be required to establish the nature of the duties that were required and expected of the doctor and how it was breached.

Every state will govern the procedure of how to present an expert medical testimony.

In general, the expert should be a person who is medically qualified to speak specifically about the medical procedure or treatment causing the injuries.

Limits and Awards

Before filing any claims or lawsuits, it’s worth speaking with a medical malpractice attorney to determine the extent of damages that can legally be claimed against a health professional.

There are many states that limit the total amount of money a patient may claim from a doctor.

This is referred to as a “liability cap”.

For many years, many organizations, particularly insurance companies, have advocated for the capping of liability for medical injuries.

If left uncapped, they argue that a doctor may be faced with astronomical damage awards forcing insurance companies to charge very high insurance premiums that doctors pass on to the patients.

Also, doctors who fear lawsuits may be reluctant to treat a patient when the operation may be risky.

To combat these negative impacts on healthcare services, many state laws have capped the medical liability to better control the cost of healthcare services and encourage doctors to do what’s necessary for a patient regardless of the risk.

You can read more about this topic by looking at our tort reform article.

Types of Medical Errors

Let’s look at a few medical malpractice examples and types of medical errors possible:

• Misdiagnosis of an illness
• Absence of diagnosis 
• Wrong surgery on patient
• Unnecessary surgery on a patient 
• Premature discharge of a patient 
• Failure to follow up with patient 
• Failure to order the proper tests
• Failure to prescribe the right medication
• Failure to prescribe the right dosage 
• Failure to read the patient’s file
• Operation on the wrong person
• Negligent medical treatment 
• Pressure ulcers
• Bedsores 
• Fatal infections 
• Retained foreign objects 
• Birth injury
• Stroke
• Anesthesia error 

The list can go on and on.

It is not possible to list every possible type of error a doctor or physician can make but what’s important is that there must be a breach of the doctor’s duty to act competently and with the necessary care.

Medical Malpractice Claim Takeaways 

So what is the legal definition of Medical Malpractice?

You wonder if you have a medical malpractice case?

What is considered medical malpractice?

Let’s look at a summary of our findings.

Suing For Medical Malpractice

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