Medical Malpractice In-Depth

When illness or injury forces you to go to the hospital and see a doctor, you can generally be assured you are in good hands. You may think the medical professional's years of experience and training will result in excellent treatment. But in truth, medical care providers are only human, and errors are always possible.

Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient. To get started with a medical malpractice case, read First Steps in a Medical Malpractice Claim. See FindLaw's Medical Malpractice section for more articles and resources.

Negligence by a medical professional can include an error in diagnosis, treatment, or illness management. If such negligence results in injury to a patient, a legal case for medical malpractice can arise against:

• The doctor, if his or her actions deviated from generally accepted standards of practice;
• The hospital for improper care, inadequate training, such as problems with medications or sanitation, or poor supervision;
• Nurses or support staff that work under the hospital and/or the doctor;
• Local, state, or federal agencies that operate hospital facilities.

Medical malpractice laws are designed to protect the patient's rights to pursue compensation if they are injured as a result of negligence. However, malpractice suits are often complex and costly to win. So, if you think you may have a medical malpractice claim, you should consult with an attorney who will discuss the facts of your case with you and help you identify your best options.

This article gives an overview of medical malpractice claims.

Legislation Affecting Malpractice Actions

Due in part to the power and resources of healthcare industry lobbyists, many states have passed legislation making it more difficult to bring and prevail in medical malpractice actions.

In most states today, physicians and hospitals are protected by legal limits, called "caps," on the amount of damages and attorneys' fees that can be awarded in malpractice suits. Also, most states have a two-year time limit, known as a "statute of limitations," for filing malpractice actions, unless extraordinary circumstances affect the case.

One obstacle plaintiffs in many states may have to overcome before they can even file a malpractice action against a healthcare professional is the requirement that they file what is commonly known as a "certificate of merit." 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 healthcare 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.

"Respondeat Superior" and Independent Contractors

Medical malpractice can be committed by several types of healthcare professionals and, in a case where a hospital employee commits malpractice, the hospital itself may be held liable under the legal doctrine of "respondeat superior." Under this theory, an employer may be held liable for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligence occurred. This doctrine is very important to plaintiffs in medical malpractice cases because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, healthcare providers are considered independent contractors rather than employees. This makes the doctrine of "respondeat superior" inapplicable. If a doctor or other healthcare professional is an independent contractor and commits malpractice while treating a patient, the hospital cannot be held liable for the doctor's negligence, but the contractor may be held directly liable. Yet, the hospital can still be held liable for its own negligence. For example, the hospital may have been negligent in granting attending privileges to an unlicensed or incompetent physician.

Seek Legal Help with a Medical Malpractice Attorney

It's not always easy to know how to pursue a medical malpractice case. A qualified medical malpractice attorney will be able to discuss the strengths and weaknesses of your case and help you get the compensation you deserve.

A good first step is to contact a medical malpractice attorney.