Medical Malpractice Overview

We trust doctors with our health and our lives. However, even doctors make mistakes.

If a doctor makes a medical error or misdiagnoses a patient, can you sue a doctor or healthcare provider? What happens if an insurance company refuses to provide coverage for your medical malpractice action? As an injured patient, when can you file suit?

This article provides a brief overview of medical malpractice law and includes helpful links that can answer more questions about medical malpractice cases.

Malpractice Defined

What is medical malpractice? Medical malpractice is when a negligent act is committed by a medical professional in the course of providing medical care.

A negligent act resulting in personal injuries or wrongful death can occur in hospitals. Some of them are avoidable. When a healthcare professional makes a preventable error that results in injury, the patient may file a medical malpractice suit to recover damages for injuries and medical bills.

Elements of a Medical Malpractice Claim

For medical negligence to be actionable (all components necessary to constitute a viable cause of action and thus a legitimate lawsuit), the following elements must exist:

• Duty of care
• Breach of duty
• Causation
• Damages (non-economic damages, economic damages, and punitive damages)

Causation can be measured using proximate cause. Proximate cause is a legal term that tests if a medical professional is liable for a personal injury. Causation also uses a "but for" test. "But for" the alleged negligence of the medical professional, the harm or injury to the patient would not have occurred. For example, “but for" the doctor's surgical error, the patient would not have lost their leg.

If the injury still would have occurred regardless of the alleged act of malpractice, then there is no valid claim. See Elements of a Negligence Case for more details.

The Duty of Care

A physician owes a duty of care to patients. This is a higher standard of care than a typical negligence claim, such as with a car accident.

In the United States, a regular person has no affirmative duty to assist injured individuals in the absence of a special relationship with them (such as doctor-patient, attorney-client, guardian-ward, etc.). However, once a doctor voluntarily decides to assist others or comes to their aid, the doctor becomes liable for any injury that results from negligence during that assistance.

Once the requisite doctor-patient relationship is established, the doctor owes the patient a duty of care and treatment with the degree of skill, care, and diligence as possessed by, or expected of, a reasonably competent physician under the same or similar circumstances, such as the standard of care for treatment and surgery.

Proving Duty of Care

To prove that a doctor has a duty of care, expert witnesses can either testify or provide an affidavit during depositions, arbitration, and trial. An expert witness is a medical expert or a doctor with substantial education and experience. A medical expert can evaluate a doctor's actions by studying medical records and the choices the medical provider made.

Expert witnesses can determine if a doctor made an error during a medical procedure or during medical treatment. Additionally, expert witnesses can give expert testimony at trial.

Tort Reform

Tort reform is a change or alteration of laws regarding who can sue or be sued. Tort reform essentially limits large awards for damages an injured plaintiff can recover in court.

The reasoning behind tort reform is the notion that medical malpractice lawsuits are one of the biggest drivers of high medical costs. However, a study published by the Congressional Budget Office in 2019 concluded that limiting malpractice liability could lead to a negative impact on health outcomes.

The fear of being sued has led many doctors to perform what's referred to as "defensive medicine." Defensive medicine consists of ordering extra tests and using expensive imaging devices, in order to provide a defense for a potential future lawsuit by the patient.

More than half the states now limit damage awards, and many have established limits on attorney's fees. Moreover, many states have a two-year statute of limitations (time limit) for standard claims and have eliminated joint and several liability in malpractice lawsuits.

Need Help With a Malpractice Claim?

Between the intricacies of medical care and the complexities of law, medical malpractice can be an especially difficult topic to navigate on your own. A medical malpractice lawyer can help.

If you or a loved one have been injured by a medical professional, contact a medical malpractice attorney soon. Depending on your jurisdiction and state law, your claim may be subject to a two- to three-year statute of limitations, meaning, you have two to three years from the day the injury occurs to file suit.

If you have a valid medical malpractice claim, a medical malpractice attorney can help you determine your rights and what to do next.