What is Medical Malpractice Law?

Medical malpractice, sometimes called medical negligence, occurs when doctors and medical professionals fall short of this standard of care. Healthcare providers must meet a different standard of duty and care than the average person in a negligence suit.

These cases require proving that a health care provider’s negligence directly caused an injury, often through expert medical testimony.

This article reviews the differences between a medical malpractice lawsuit and an ordinary negligence claim. You’ll also learn what a medical malpractice attorney does, and how to find the right type of lawyer for your malpractice claim.

Medical Malpractice Law

In many ways, a medical malpractice suit is like a personal injury or other negligence suit. The plaintiff or patient must prove that the doctor breached their duty of care and an injury resulted from the negligence. The elements of both negligence and medical malpractice are:

• Duty of care by the practitioner
• Breach of the duty
• Causation
• Injury directly caused by the breach

The difference in a medical malpractice claim is that the medical practitioner must meet the expected standard of other medical professionals in that specialty.

For example, in a car accident case, a driver is only held to the standard of other average drivers, not that of NASCAR drivers or Formula One racers. A heart surgeon is held to the AMA standard of heart surgeons. If the doctor makes surgical errors, the question is not whether anyone could have made them, but whether another qualified surgeon would have done so.

Types of Medical Malpractice

Medical malpractice takes many forms. The most common may be medical error. Whether or not medical mistakes are a leading cause of death, as once thought, they cause increased pain and suffering for victims of medical malpractice. Other types of medical malpractice and negligence include:

• Birth injuries, such as cerebral palsy, oxygen deprivation, and shoulder and neck injuries
• Surgical errors, including operating on the wrong organ, erroneous amputation, or leaving surgical equipment inside the body
• Anesthesia errors, over- or under-sedation, or anoxic-related injuries
• Failure to treat, either through misdiagnosis or improper assessment of the patient
• Specialty treatment errors, such as emergency room treatment, dental and orthodontic treatment, or physical therapy
• Product liability, including faulty scanning equipment, medication, and prosthetics
• Wrongful death that would have been preventable by prompt treatment or earlier diagnosis

Patients may also have medical malpractice cases against the hospital or the medical care team. For instance, if a doctor has a history of making small but significant errors and hospital administration knows of it, patients may have a claim against the hospital under a vicarious liability theory.

The Health Information Portability and Accountability Act (HIPAA) may be grounds for legal action. Medical records are confidential unless the patient permits in writing for their release.

State Malpractice Laws

Each state has its own medical malpractice laws. Laws vary on damage caps, statutes of limitations for filing, and other requirements. Recent efforts at tort reform (filing and awarding verdicts) have changed state laws within the last few years. These changes have affected verdicts, insurance company payments, expert testimony, and damage caps.

If you believe you have a malpractice claim, consult a medical malpractice lawyer as soon as possible.

What To Ask a Medical Malpractice Attorney

When you meet with a malpractice attorney for legal advice, you should ask some questions at the initial consultation. Not all personal injury attorneys handle every PI practice area. Asking upfront if they have experience in medical negligence cases will save both of you time and money.

Questions you should ask during your case review include:

• What is the state statute of limitations on my case? In most states, the statute starts on the date the injury happened or the date you found the injury. If your medical treatment was two years ago and the statute is three years, you’re almost out of time to file your claim. But you might have more time if the treatment caused an injury you only discovered this week.

• What will you need to prove my case? Ask what medical bills, reports, witness statements, or other documentation you need. Recent tort reform in some states has limited the number of expert witnesses in a medical malpractice case, so be sure you know what you need.

• Do you work on a contingency fee basis? Most personal injury attorneys work under this system, which means they only get paid (from a percentage of your awarded damages) if they win. Medical malpractice attorneys usually do the same, but you should inquire before retaining their services.

The attorney should begin with a case evaluation to determine whether you have a winning case. An experienced medical malpractice attorney will let you know if your case should go to trial or if you should accept a settlement offer.

Medical malpractice can be difficult to prove because the facts in the case reflect the doctor’s professional opinion. Other medical experts must testify that they would have done something differently or that the doctor or hospital provided a substandard level of care.

Find a Medical Malpractice Attorney Near You

Medical malpractice lawsuits can take months or years before the injury victim can finally recover damages. You need a legal advocate who understands the difficult process and can ensure you get the compensation you need. 

Because state law is relevant, your attorney should be licensed in the state where the injury occurred. FindLaw’s directory of medical malpractice attorneys can get you started. Enter your city or zipcode for a list of qualified attorneys in your area. Most personal injury attorneys offer free case evaluations.