Medical Malpractice FAQs

Breaking Down The Law Process One Question At A Time​

Table of Contents

What is Medical Malpractice?

Medical malpractice is when a health care provider’s action (or lack thereof) did not meet the appropriate standard of care under the treatment conditions. Malpractice usually presents itself in the form of negligence, but it can also be through a doctor’s recklessness.

According to the Journal of the American Medical Association, medical negligence is the third leading cause of death in the U.S., behind heart disease and cancer. In 2012 alone, over $3 billion were spent on medical malpractice claims.

How do you prove a medical malpractice case?

Personal injury law doesn’t hold doctors legally accountable for any medical, diagnostic, or procedural error. Rather, plaintiffs (the patient) must prove three things to win a medical malpractice lawsuit:

  1. There was a doctor-patient relationship
  2. The doctor was negligent or reckless, which led to not providing the treatment in a reasonably competent manner
  3. The doctor’s negligence or recklessness caused the injury to the patient

What are the different categories of medical malpractice?

Medical malpractice law is a subgroup of personal injury law and is designed to compensate you for the harm the defendant caused. Any divergence from accepted medical standards can be considered medical malpractice. Below are a few examples of medical malpractice:

  • Misdiagnosis or delayed diagnosis
  • Failure to Treat
  • Hospital infections
  • Birth Injuries
  • Medication errors
  • Surgical or procedural errors

Shockingly, medical malpractice is considered the third leading cause of death in the U.S., according to Johns Hopkins University School of Medicine.

Who can I sue in a medical malpractice claim?

You may sue any of the individuals or Hospital staff members involved in the malpractice. It may be anyone from the doctor to the janitor, depending on the circumstances. Additionally, you can sue the hospital itself for not providing appropriate care and hiring the right medical professionals.

How much might my medical malpractice case be worth?

Estimating the worth of medical malpractice obviously depends on several factors. Medical malpractice can include quite a few damages, and the hospital management can be responsible for compensating your physical and financial needs. Generally, those who have suffered a permanent injury or loss of function will recover a higher compensation than those who only suffered a temporary injury. Additionally, a patient who can show that the defendant behaved knowingly or in some egregious way may also be entitled to claim punitive damages.

What is considered the "standard of care" in medical malpractice cases?

Medical professionals are responsible for exercising the level of care that a reasonably prudent person in their line of work would use. Medical malpractice is defined as “any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” To file suit for medical malpractice, the plaintiff must show that the physician diverged from that of a reasonably careful caregiver in the same situation. However, what constitutes a “reasonably prudent person” can be pretty subjective and differ by state. Contact a lawyer in your state to learn whether your case would quality.

What is the "statute of limitations" in medical malpractice cases?

The statute of limitations in medical malpractice cases refers to the amount of time a patient has to file a case against the caregiver or medical establishment. The time usually starts from the day the incident occurred but may be pushed off. Additionally, if the person doesn’t realize there was malpractice until a later date, their time will only start ticking when they recognized the negligence. Statutes of limitations for medical malpractice can range from 1 year to 20 years, depending on the circumstance and state that the case occurred. Contact a medical malpractice attorney in your state to better understand how much time you have to file your lawsuit.

What if a nurse gave me the wrong medication?

Generally speaking, the patient can only sue the negligent person or entity, in this case being the nurse. However, the patient may also sue the hospital by arguing that the nurse wasn’t appropriately trained as the hospital or doctors didn’t clarify the danger of misprescribing.

What if my doctor didn't tell me about the risks of a procedure?

You may sue if the doctor didn’t inform you about how everything will proceed in your case since it is the doctor’s responsibility to let you know about the pros and cons of an operation or surgery. However, you will need to demonstrate that you would have learned about the risks if you would have contacted another expert and that you would not have gone through with the procedure with this information.

Do I need an attorney for a medical malpractice case?

Because of the complexity of medical malpractice cases, it is almost impossible to take on your case alone. From a medical standpoint, the lawyer will work with medical professionals to assess the damage and prove that your injuries could have been avoided. They will also negotiate and potentially litigate against the defendant and their insurance company. If you don’t know too much about this process, you will almost certainly make mistakes and potentially end up losing the entire case on a technicality.

What if I believe that my doctor didn't do something that they should have?

There are two ways a medical professional can be responsible for malpractice – commission or omission. The obvious one is when a doctor does something that they shouldn’t have. However, even if a doctor refused to do something that they should have reasonably done, this also violates the medical standard of care.

What are some common types of medical malpractice?

There are three major types of Medical Malpractice:

1. Failure to make the proper diagnosis

The number of misdiagnoses is staggering. About 12 million adults who seek outpatient medical care are misdiagnosed each year in the U.S. The most common sources of medical malpractice claims between 2013 to 2017 were diagnostic errors.

2. Failure to treat a medical condition

If a medical professional fails to treat a patient through negligence or medical error, it can be considered medical malpractice. The general principle is that the doctor is required to adhere to accepted standards of care. Examples of this type include:

– Failure to assess and observe a patient’s condition
– Failure to conduct required medical tests
– Failure to refer a patient to a specialist
– Failure to treat appropriately and in a timely manner
– Failure to advise about the available treatments for an existing condition
– Failure to treat a patient because they didn’t have insurance

3. Medication errors

According to, about 1.3 million people are injured every year in the United States due to medication errors. 

There are many types of medication errors, including:

  • dispensing the wrong medication to a patient
  • dispensing the wrong dosage of medication (either too much or too little)
  • mislabeling the medication
  • not warning the patient of the typical side effects of the medication
  • prescribing the patient a drug with which the patient will have an allergic reaction
  • prescribing the patient a drug that interacts badly with other medications that the patient is already taking

What would not constitute medical malpractice?

All procedures and operations in the medical field have their risks, and there is no way one can predict what might happen. Therefore, an undesired result alone is insufficient to hold a doctor accountable for damages. There must also be evidence that the doctor failed to follow the medical standard of treatment. Once the proof is in order, a medical malpractice trial can occur.

Additionally, even if the doctor made a mistake or failed to follow the accepted medical standard, you must also prove that the doctor’s actions caused harm to the patient. A successful lawsuit is unlikely if the doctor’s error did not conclusively cause the patient’s injury.

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