Medical Malpractice Law

Medical malpractice liability can occur during a misdiagnosis, improper treatment, or surgical error. FindLaw’s section on Medical Malpractice provides resources on many medical malpractice issues, from the first steps to breaking down the legal elements of a claim.

With these resources, you can learn more about medical malpractice suits, including:

• The standard of care that doctors owe patients
• Patients’ rights to recover damages
• Common types of medical malpractice, such as misdiagnosis, substandard care, and lack of informed consent
• Breach of doctor-patient confidentiality

An attorney can discuss the facts of your case and identify your best legal options for moving forward. Use FindLaw’s directory to contact an experienced medical malpractice attorney today.

What Is Medical Malpractice?

Medical malpractice happens when a medical professional, such as a doctor, causes an injury to a patient through a negligent act or omission. 

In the legal sense, it is a tort, a wrongful act causing harm to another person. While the exact requirements for bringing a successful medical malpractice lawsuit vary by jurisdiction, certain elements are common to all such lawsuits.

Who Can You Sue for Medical Malpractice?

A medical malpractice can arise against several parties. Medical malpractice liability is not limited to doctors.

Medical professionals and liable parties can include:

• Doctors
• Physicians
• Nurses
• Assistants or support staff who work under a hospital or a doctor
• Orderlies
• Government agencies operating hospital facilities

A hospital, nursing home, or medical facility can also be found liable for medical malpractice under certain theories. A medical facility could be vicariously liable for its employee’s negligent acts if the employee acted within the scope of their employment. This doctrine is critical to plaintiffs in medical malpractice cases. It helps ensure there will be a financially responsible party involved in the litigation. This means the plaintiff may have a better chance of actually collecting their compensation if they win.

Examples of Medical Malpractice

Negligence by a medical professional can include any of the following:

• Misdiagnosis
• Delayed diagnosis
• Emergency room negligence
• Surgical errors
• Failure to obtain informed consent
• Wrongful death
• Birth injuries
• Prescribing the wrong dose of medication
• Anesthesia errors

When a medical professional fails to offer acceptable care for healthcare services, it can be considered medical malpractice.

Legal Standards in Medical Malpractice Cases

After identifying who was at fault, the law must be applied to determine if a medical provider is legally liable for the negligent act.

To establish medical negligence, an injured patient must prove:

• The healthcare professional owed a duty to the patient as part of the doctor/patient relationship
• The healthcare professional deviated from the accepted standard of care, breaching the duty owed to the patient
• The patient suffered a personal injury
• The healthcare professional’s deviation from the standard of care caused the patient’s injury

Other doctors will often testify as expert witnesses and evaluate the mistakes or procedures that a doctor made. They will give expert testimony stating that the doctor breached their duty of care or did not breach their duty of care.

If a patient is successful in proving the elements of medical negligence, the patient may be awarded economic and non-economic damages. Economic damages are easy to measure, such as medical bills or lost wages. Non-economic damages are hard to measure, such as a lost limb and pain and suffering. Punitive damages may also be available if the doctor’s breach was malicious or grossly negligent.

What To Do in Case of Medical Malpractice

There are some important steps to take if you or a loved one think a medical professional has provided inadequate or improper care.

First, you should contact the medical professional in charge of your care. Your issue could be remedied with the proper care. If your original healthcare provider is unable to remedy your situation, seek medical help immediately. Your priority should be to take care of your own health and medical needs.

Next, you should also be aware of the legal time limits regarding your case. Medical malpractice claims are subject to a statute of limitations, meaning you may have a limited time frame in which to file a legal action.

Lastly, request access and collect medical records relevant to your claim. These records can help you and your attorney understand what went wrong during your care and support your claim with evidence.

Differences Between Medical Malpractice and Personal Injury Cases

Medical malpractice cases are much more than personal injury cases that focus on healthcare negligence. Many states have passed medical malpractice laws. Defense-friendly litigation makes bringing and prevailing in medical malpractice actions more difficult.

Prevailing in a medical malpractice action is difficult. These complex cases require extensive time and resources. Few cases end up in court and a verdict. Cases that make it through the screening process and proceed through the litigation process often settle. 

Medical malpractice cases differ from personal injury cases in the following ways.

Damage Caps

Most states have damage limits on liability for medical malpractice cases. These are known as damage caps. Damage caps protect physicians and hospitals. The laws limit the damages and attorneys’ fees available for malpractice suits.

Certificate of Merit

The affidavit requirement is one obstacle that plaintiffs in some states must overcome when filing a malpractice action. It’s commonly known as a “certificate of merit” or “affidavit of merit.”

A plaintiff must obtain an affidavit from an expert witness providing a sworn statement that the defendant was negligent. This is often another physician in the specialty field. The expert must review the relevant medical records and certify that the plaintiff’s healthcare provider deviated from accepted medical practices.

The expert provides an opinion on causation concerning the plaintiff’s injuries. The plaintiff must file the certificate of merit. This document confirms that the plaintiff’s attorney has consulted with a medical expert about the case. It ensures that the plaintiff’s action has merit.

Statute of Limitations

Most states have a two or three-year time limit, known as a “statute of limitations,” for filing malpractice actions. A plaintiff must file the lawsuit before the statute of limitations expires.

The clock begins running in medical malpractice cases upon injury or when treatment concludes. Sometimes, an exception can apply to extend the limitation period.

Legal Help for a Medical Malpractice Claim

Medical malpractice laws can be very complicated. There is a lot of paperwork to request from hospitals, doctors, specialists, and insurance companies. This can be a difficult process to handle on your own. A medical malpractice lawyer will be able to help you with your case. Some attorneys offer a free case evaluation to see if you will be able to file a medical malpractice lawsuit.

Hiring an experienced medical malpractice attorney is helpful when filing a medical malpractice claim.