Medical malpractice, also commonly referred to as med mal, occurs when a patient is injured due to the negligent act or omission of a:

  • Hospital;
  • Doctor; or
  • Other health care professionals.

The rules governing medical malpractice cases vary by state. However, there are certain general rules and required elements which apply to most cases of medical malpractice.

What are the General Rules and Required Elements for Medical Malpractice Claims?

There are several elements which must be shown in order to prove that a medical malpractice occurred, including:

  • A doctor-patient relationship existed;
  • The doctor was negligent and the doctor’s negligence was the direct cause of the injury; and
  • The injury led to actual harm to the plaintiff.

The plaintiff must show that they had a doctor-patient relationship with the health care professional they want to sue. This means that a doctor was seeing and treating them.

In order to prove medical malpractice, the plaintiff must be able to show that the doctor caused harm in a way which another doctor, under the same circumstances, would not have caused and, as a result, the plaintiff suffered an injury. The standard of care for a doctor is whether the doctor was reasonably skillful and careful.

The plaintiff is required to show that it is more likely than not that the doctor’s negligence was the direct cause of their injury. Expert witnesses are usually required to present evidence regarding the medical standard of care and to show if the doctor, or defendant, did, in fact, deviate from that standard.

The plaintiff must be able to demonstrate that they suffered an actual injury which can be remedied by damages regardless of how apparent it may be that the doctor failed to maintain the duty of care.

Some general types of harm patients can sue for may include:

  • Pain from the injury;
  • Disability from the injury;
  • Associated medical bills; and
  • Lost wages due to inability to work.

What is the Duty of Care Requirement for Medical Malpractice Lawsuits?

As noted above, medical professionals are held to a specific standard of conduct referred to as the duty of care. Physicians are held to a higher standard of care because they receive special training and education in order to care for patients.

A plaintiff in a medical malpractice lawsuit is required to prove that the medical professional breached their duty of care to the plaintiff. The duty of care is measured by the skill and care of the average health care provider who practices in the provider’s specialty.

In order to show that a breach of the duty of care took place, a plaintiff must show that the doctor’s actions were outside of the scope of acceptable medical practices. During their years of schooling and training, doctors and nurses are taught about the accepted and standard methods for treating certain illnesses and conditions.

When a medical professional fails to follow this standard by either not taking action or by taking actions which are not accepted by the medical community, that doctor or nurse has breached the duty of care which is required by law.

What are Some Common Types of Medical Malpractice?

There are several different types of medical malpractice. Most claims, however, fall into one of the following 3 categories:

  • Failure to diagnose: If a doctor fails to properly diagnose a patient they may be liable for a medical malpractice lawsuit;
  • Improper treatment: Improper treatment of a patient may include:
    • prescribing or administering the incorrect dosage of a drug;
    • delaying or rushing surgery; or
    • failing to take necessary safety measures; and
  • Failure to warn a patient of known risks: This is formally known as the failure to perform the duty of informed consent. A doctor may be held liable for medical malpractice if a patient is injured by something they are not warned about, including:
    • a procedure;
    • medication; or
    • course of treatment.

What are Some Common Medical Malpractice Errors?

Medical malpractice may occur due to many situations. Some further examples of medical malpractice which may lead to a claim may include:

  • Incorrect diagnosis;
  • Misreading laboratory results;
  • Unnecessary or excessive surgery;
  • Surgical errors such as non-sterile environments;
  • Improper medication or dosage;
  • Failure to acknowledge medication allergies;
  • Poor follow-up or lack or proper aftercare;
  • Early and improper discharge;
  • Disregarding or not taking appropriate patient history;
  • Failure to recognize symptoms; and
  • Rushed diagnosis or surgery.

What is Considered Proof in Medical Malpractice Cases?

Proof in medical malpractice cases can rely greatly on the testimony of expert medical witnesses. Expert medical witnesses for the plaintiff can evaluate their condition by reviewing their medical records or examining the plaintiff for themselves.

An expert witness can also investigate the circumstances which surround the injury. This may include reviewing the actions the doctor or nurse took and comparing that information to the common practices in that medical practice area.

Both sides of a lawsuit can provide expert testimony in a medical malpractice lawsuit. It will then be up to the court or jury to determine if a duty was owed and breached.

Are There Special Rules and Procedures for Medical Malpractice Claims?

Yes, most states have their own special rules and procedures for medical malpractice claims. It is important for an individual to be aware of their state specific rules prior to filing a lawsuit.

The general rules and procedures for medical malpractice claims include:

  • The statute of limitations;
  • Special review panels;
  • Requirement for expert witness; and
  • Limits on damages awards.

In the majority of states, an individual is required to bring a medical malpractice claim within 6 months and up to 2 years following their injury, depending on the jurisdiction. An individual will be barred from filing a claim if this time limit has passed regardless of the facts of their case or the extent of their injury.

In many states, prior to filing a medical malpractice lawsuit, the case must be reviewed by a special review panel. This is a panel of experts designed to:

  • Hear arguments;
  • Review evidence and expert testimony; and
  • Provide an opinion regarding whether malpractice occurred.

The outcome of this panel decision does not substitute for an actual medical malpractice lawsuit. The findings of the special review panel are often used in court to determine if a case should proceed to trial or not.

As noted above, the majority of states require that a medical expert provide expert testimony at the panel stage as well as during the trial. Generally, an expert medical witness is required to have experience in the medical field which is in dispute.

There may be limits to the amount of damages, or money, that a plaintiff may be awarded for their medical malpractice claim, commonly referred to as a cap. The amount of damages awarded will depend upon the extent of the injury and negligence.

Do I Need an Attorney?

If you believe you have been the victim of medical malpractice, it may be helpful to consult with a personal injury lawyer near you. An experienced attorney will be able to ensure that you file your claim within the allotted time period before the statute of limitations runs.

In addition, your attorney will have knowledge of the various statutes, procedures, how to gather expert witnesses as well as how to determine an appropriate amount of damages to seek. Medical malpractice is a very complex area of law and having an attorney on your case can help ensure the process is handled correctly and you receive compensation for your injuries.