Medical Malpractice Claim FAQ
By FindLaw Staff | Legally reviewed by Garrett Monteagudo, Esq. | Last reviewed January 06, 2023
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Medical malpractice is a cause of action related to medical negligence in providing health care. This medical negligence is done on behalf of a medical professional, like a doctor or other medical care provider. Some surgeries are known to be risky and may result in complications – this is different from medical malpractice. Malpractice occurs when a doctor fails to perform to the standard of their profession.
Medical malpractice laws give the patient, the victim of medical malpractice, opportunities to recover for surgical errors, medication errors, medical bills, or other injury claims. The amount of compensation varies depending on the type of medical malpractice. An example of medical malpractice would be if a doctor leaves a scalpel inside a patient.
If you or a loved one believe you are a victim of medical malpractice, it is important that you speak to a medical malpractice attorney as soon as possible. Medical malpractice lawyers will help provide insightful legal advice and answer your specific questions. Below are answers to the most frequently asked questions (FAQs) about medical malpractice.
Q: What is a medical malpractice claim?
A: A medical malpractice claim is a claim of negligence committed by a professional health care provider -- such as a doctor, nurse, dentist, technician, hospital or hospital worker -- whose treatment of a patient departs from a standard of care met by those with similar training and experience, resulting in personal injury to a patient or patients.
Q: Does someone who is not satisfied with the results of his or her surgery have a viable medical malpractice claim?
A: In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not necessarily mean negligence occurred. To succeed in a medical malpractice case, a plaintiff has to show an injury or damages that resulted from the doctor's deviation from the standard of care applicable to the procedure. A misdiagnosis alone is not enough to prove medical malpractice occurred.
Q: What should I do if I think I have a medical malpractice claim?
A: You should talk to a medical malpractice lawyer who specializes in such cases, as soon as possible. Tell the medical malpractice attorney exactly what happened and in chronological order. Tell them about your first visit with the doctor or other health care provider, through your last contact with them. If possible, obtain your medical records and bring them to your first meeting with the attorney. There are time limits governing how long someone may wait to bring a medical malpractice claim, so time is of the essence.
Q: What is "informed consent"?
A: Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient of all the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.
Q: Do I have a case against a doctor who prescribed me a drug for treatment, but failed to tell me it was part of an experimental program?
A: Your physician had a duty to tell you that the drug was part of an experimental program, and you had the right to refuse to participate in it. You may have grounds for an action against your doctor based on their failure to obtain your informed consent relative to this treatment.
Q: If the consent form I signed prior to a procedure is considered valid, can I recover any damages in a medical malpractice claim against my doctor?
A: Yes, you still may be able to recover damages. A consent form does not release from liability a physician who was negligent in performing a medical procedure. If you can establish that your doctor deviated from the applicable standard of care in performing the procedure, and you were injured as a result, you may still recover against him/her. You may also have a claim that the procedure the physician performed went beyond the consent you gave, in which case the doctor might even be liable for battery.
Q: How does a jury determine if a doctor's actions were negligent?
A: A jury will consider the testimony of experts, usually other doctors, who will testify whether they believe your physician's actions followed standard medical practices or fell below the accepted standard of care.
Q: What is a "Certificate of Merit?"
A: One obstacle plaintiffs in many states may have to overcome before they can even file a medical malpractice claim against a health care professional is the requirement that they file what is commonly known as a "certificate of merit." In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff's health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff's action has merit.
Q: Is there a time limit on medical malpractice lawsuits?
A: Medical malpractice claims do have a time limit or a statute of limitations. States vary in their statute of limitations laws. You must also make sure to get medical treatment or medical care in a timely manner. If your loved one passed away from medical malpractice, you may want to pursue a wrongful death claim.
Wondering if You Have a Valid Medical Malpractice Claim? An Attorney Can Help
Medical malpractice claims typically require a high level of expertise. If you suspect that your doctor was negligent, but aren't sure, you should consult with an experienced legal professional who can explain your options. Medical malpractice lawyers will review your personal injury case and review facts specific to your case.
Contact a medical malpractice attorney right away to get the answers you need.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified medical malpractice attorney to make sure your rights are protected.