Every 43 minutes – day and night all year long – money is paid out in settlements or jury awards for deaths or injuries in medical malpractice incidents.
The awards totaled about $13 billion in 2013.
Even more stunning: Only about 2% of medical malpractice victims even seek compensation. Read medical malpractice laws and statute of limitations.
Medical malpractice is acknowledged as a major cause of death and serious injury in the U.S. Yet recent research points to the possibility that the number of victims may far exceed any prior estimate and medical errors may, in fact, be the third largest cause of death in the nation. Find medical malpractice lawyers by injury type and state.
The topic is complex and opinions about its severity range across a broad political and philosophical spectrum. Click here for frequently asked questions about medical malpractice.
What is Medical Malpractice?
Responsible. Competent. Experienced. You think of physicians having all these qualities. You put your life in their hands. Yet, sometimes things go awry.
When things go wrong and the actions of a medical professional harm you, he or she has failed to fulfill professional obligations to you. There doctor failed to perform his or her medical responsibilities.
Medical malpractice occurs when a patient is harmed by a doctor or other medical entity.
Each state has its definitive laws regarding medical malpractice. Besides the details of the concern, these rules usually mention such items as dates of the incident and whether you need to notify the physician or medical facility of your intent to seek legal action.
General guiding principles cover an array of categories that apply to the majority of malpractice cases. The rules about medical malpractice — from when you must bring your lawsuit to whether you must notify the doctor ahead of time — vary from state to state. But there are some general principles and broad categories of rules that apply to most medical malpractice cases. Here is an introduction to the law and some of the rules governing medical errors.
Definition of Medical Malpractice
Medical malpractice occurs when a doctor or other health care provider causes harm to a patient because of the practitioner’s failure to do something. Physicians and others within the medical community do make mistakes, yet not all medical errors are malpractice.
The concept of malpractice comes into play only when there is negligence. A formal definition of medical malpractice states that the healthcare provider did not adhere to the standard of care for his or her professional specialty and area of expertise.
The medical error actually must result in harm to the patient. Individuals studying a medical malpractice case often query whether a competent healthcare professional in the same situation would have acted the same. If the conclusion is “no”, then there may be a cause for a medical malpractice lawsuit.
Every type of medicine and every stage of treatment can become the target of medical malpractice. An incorrect diagnosis of a patient having a heart attack, a wrong diagnosis of someone and thus causing him or her a delay in treatment, inadvertently giving a patient a double dose of medication, doing surgery on the wrong body part, or giving a baby the adult dosage of medication are all examples of medical malpractice.
You want to avoid malpractice. Almost 200,000 individuals die from medical malpractice each year in the United States. To avoid this happening to you, be informed and only use board-certified physicians. Ask your primary care doctor for referrals and recommendations. Also, getting a second opinion is a good practice. Don’t just accept a diagnosis, verify its accuracy if you have any questions about it. Ask many questions. You need to know how the physician arrived at your diagnosis, what are the medications the doctor is recommending, and why you are taking these particular medications.
Do You Have a Case?
If you have suffered an injury from careless medical treatment, you may be considering suing. In this case, you need to establish whether your situation meets your state requirements for medical malpractice. Regulations and guidelines vary from state-to-state, however, a broad general rule states you must be able to prove the medical provider failed to meet the minimal standard of care that is common in your situation.
Part of pursuing medical malpractice litigation is your task of proving that your healthcare provider did not deliver the minimum standard of care in a situation like yours. The blatant negligence must have caused the personal injury to you, and the injury must have seriously impacted you and caused pain and suffering, removal of the wrong body part, or resulted in your inability to work.
You may also have a medical malpractice case if you did not give informed consent to the medical team prior to the action. Your healthcare provider must tell you about potential side effects, negative outcomes, and expected results before the treatment, and you must agree to undergo the treatment these facts describe.
If you were not advised of any of these possibilities, you may have a medical malpractice case. For example, if a surgeon does not tell you he may have to remove your lungs as part of the surgery, you couldn’t agree to this because you did not know this was a possibility before the surgery. Thus, if he or she removes the lung, this is cause for a medical malpractice lawsuit.
How to Find an Attorney
If you have done your research and are of the opinion you have a cause for a medical malpractice lawsuit, your next step is finding the medical malpractice attorney that will do the best for you. In some states, medical malpractice comes under the category of personal injury.
Begin your search for the best attorneys that specialize in medical malpractice by researching the local bar association. It usually has attorney referral programs. Select someone who has expertise and experience with medical malpractice cases.
You probably will have a free initial consultation with the lawyer. Take this opportunity to meet with several attorneys before making your selection. Find an attorney with whom you feel comfortable and confident. In these cases, it is customary for an attorney to take a percentage of your settlement or award as the fee. In most malpractice situations, the attorney does not charge you a fee if he or she loses the case.
What to Expect in a Malpractice Case
When considering medical malpractice litigation, keep in mind that every state has its own laws regarding medical malpractice statute of limitations. This is the legal timeframe in which you can file a suit. Most of these laws contain an exception to the statute. Legal experts refer to this as the discovery rule.
For example, if you find out several years after a surgery that the surgeon performed a bypass on the wrong artery, and the statute of limitations is up, the law provides you a certain time from the date of the discovery of the mistake to file your case.
While discussing your situation with an attorney, the lawyer talks about your set of circumstances. He or she may request that you see another doctor and receive an objective analysis. Your doctor and other medical entities have medical malpractice insurance. In pursuing a case, the medical representatives and attorneys represent the doctor and others in court. These cases usually begin with a discovery phase where representatives exchange information.
The attorneys will probably depose you and the medical provider. In a deposition, each party provides supporting evidence and facts that substantiate each side of the situation. A recorder listens to the discussion and writes this information into a document. You swear the details are accurate and you sign the document.
Your attorney has a goal to reach a settlement. If you cannot agree to a settlement, the case goes to court.
Medical malpractice cases can be very complicated. This is not the place to go-it-alone. It is in your best interest to have an experienced attorney who specializes in medical malpractice at your side.
Know About Standard of Care
Once you sort-through the numerous reasons people file for medical malpractice, it all comes down to negligence. The medical practitioner was careless. When you think of medical malpractice just think of medical negligence.
Negligence means not delivering appropriate care or doing something wrong. Attorneys base the meaning of negligence on what they call “a reasonable person” rule. This asks whether a reasonable person would have acted in a different manner; if the doctor did not act in a reasonable way the action is negligent. On the other hand, if a reasonable person would not have done a specific action, then doing that action would be negligent.
Attorneys dealing with a medical malpractice case do not usually use the reasonable person standard. Today, most courts define negligence as a healthcare providers failure to exercise the proper standard of care.
Understand Standard of Care
A standard of care is a written set of guidelines that describe the actions, rules, or conditions that direct patient care. Attorneys and patients can refer to the standard of care to determine whether a medical professional acted appropriately. This standard also evaluates a healthcare provider’s performance.
Standard of care is a legal term. It is not a medical term. Lawyers use this term, not doctors. In most instances, the only time doctors think about standard of care is when they are in the courtroom during a medical malpractice case or when they are attending malpractice training.
Standard of care relates to the degree of care, skill, and medical knowledge of the average healthcare professional. Keep in mind that attorneys base standard of care on the average medical practitioner. Standard of care evaluates whether the average physician would have customarily acted the same in identical circumstances.
To prove medical negligence, you must submit evidence of four circumstances:
- A doctor owned the duty of care.
- The physician violated the standard of care.
- The patient suffered a compensable injury.
- Injury was caused in fact by substandard conduct.
It is up to you and your attorney to prove these facts.
Once a medical professional agrees to treat a patient, he or she has a professional duty to provide competent care. The patient must demonstrate and prove that verified compensable injury resulted from the negligent care.
Proof of injury can show in the physical situation caused by the doctor’s treatment, and it can also show as emotional injury. The amount of compensation is a strongly-argued aspect of the litigation.
Attorneys also delve into the cause of the injury. Doctors may allege that events unrelated to the negligent medical treatment caused the injury.
For example, if someone sues a doctor for prescribing the wrong medication to a patient with heart disease and that patient dies of a heart attack, the estate of the patient cannot sue for damages related to the heart attack without proof that the medication caused the death. This case is based on standard of care.
In such a medical malpractice case, attorneys on both sides would call expert witnesses to testify. Expert witnesses provide details and explanations that help jurors who are not familiar with medical events and terminology understand the proceedings.
Attorneys often call on medical specialty groups, such as the American College of Obstetricians and Gynecologists, to provide expert witnesses to testify in cases where negligence is related to this specialty group. If the actions of the physician does not conform with standards, the testimony can prove negligence. If the behavior meets the standards, due care was provided.
Causes of medical malpractice suits come in many variations. Below are some malpractice categories:
Offering a patient the wrong diagnosis is dangerous and can cause the patient pain, suffering, expenses, and even death.
A mistake in diagnosis can cause a patient to receive the treatment for a disease he or she does not have. A diagnosis in error can cause a patient to receive medications or go through procedures that make him or her more sick or become ill in new ways.
If a patient is properly diagnosed too late, he or she can get worse or become untreatable. For example, if cancer is misdiagnosed it can more solidly invade the patient’s body and often treatment becomes difficult of impossible.
If a diagnosis is not caught in time or missed entirely, death can result. A false diagnosis or failure to treat may cause a patient to not heal. Medical professionals should not stop testing for a disease until the patient recovers or heals.
Conducting surgery leaves many opportunities for error. Some of these mistakes involve providing surgery to an inappropriate site. Having good communication between the surgery team and the doctor and sticking with appropriate approved standards and procedures are essential to good surgery techniques.
It is imperative that the surgeon initializes the surgical area and keeps it sterile. The operating room must be sterile before the surgery begins. Stumbling blocks for surgery include acute respiratory failure, metabolic issues, post-operative infections, poor nursing care, or wound reopening.
Almost all surgeries involve putting the patient under anesthesia. Anesthesiologists usually follow standard procedures that include checking the patient’s weight and physical condition. This information allows the anesthesiologist to accurately calibrate the amount of anesthesia to administer for each surgery. It is the responsibility of the anesthesiologist to verify whether the patient has any drug allergies, and to be aware of the patient’s medical history. Both medical history and allergies can affect the reactions to anesthesia.
Frequent anesthesia errors include:
- Delayed anesthesia delivery
- Dosage error
- Failure to monitor the patient
- Failure to properly inform a patient of instructions for before, during or after the procedure
- Failure to recognize and respond to anesthesia complications
- Faulty equipment
- Hazardously prolonged sedation
- Other major malpractice areas
Lack of Informed Consent
Prior to starting any medical procedure, physicians need to obtain a signed Informed Consent form from the patient. Before any procedure, the doctor is supposed to counsel the patient and discuss the diagnosis, treatment choices, and the risks of accepting or not accepting the procedure.
When the physician does not explain all possible medical treatments, he or she is not providing the patient the chance to decide medical actions. If the patient does not have the option to discuss important medical issues, he or she is denied the choice to consider treatment options.
If a doctor treats a patient against the patient’s wishes, this shows a disregard for the patient’s rights. Patients have the final say about their medical treatment. The patient retains the choice about what can and cannot be done to his or her body.
The exception to this rule comes when there is an emergency situation. Often in emergencies the patient is not conscious or coherent. In a life-threatening circumstances, and if the medical professional cannot obtain a signed Informed Consent form, the law states that the medical provider must attempt to save the individual’s life. Medical malpractice does not apply under emergency circumstances.
More Than Doctors
Negligence can also come from hospital staff. Others are also responsible for negligence in the hospital. Medical technicians, paramedics, therapists, and nurses are also responsible in many medical malpractice cases. General hospital negligence causes injuries and death. In many cases, the hospital staff have more contact with the patients.
Medical Negligence Versus Medical Malpractice
If you have been injured due to a physician’s negligence, you and your attorney rely on the word “negligence” to prove the doctor or medical entity at fault for the incident. Negligence is a major concept in medical malpractice litigation.
The major elements that go into a negligence situation are duty of care and a ”breach” of that duty.
Attorneys use the phrase “duty of care” to refer to the responsibility of an individual to avoid harming another. In lawsuits, attorneys strive to prove that another person was careless and negligent and caused a breach of the duty of care that caused injury to another. The injured person is the plaintiff and he or she needs to prove without vagueness how the other party did not meet that duty.
When the breach is established, the attorney for the patient must show negligence and that the patient suffered substantial injuries because of the breach of duty. Proving a breach is just the beginning of investigating the medical malpractice personal injury claim.
Duty of Care and Personal Injury Lawsuits
The plaintiff and her or his attorney must prove the medical representative breached the duty of care and did not meet the necessary level of reasonable care under the circumstances.
For some cases, it is challenging to prove what the appropriate standard of care was. This is where the facts come into play.
A doctor or healthcare practitioner must provide treatment with the same quality of skill and care that a reasonably able medical practitioner would provide in similar situations. Attorneys compare the circumstance with superior medical standards and practices in the identical specialty field.
After establishing the duty of care in the courtroom, the patient and his or her attorney must prove without a doubt how the medical facility or personnel breached the standard of care. At this stage, the patient and the attorney must present details about how the medical entities did or failed to do that made the conduct unreasonable in the circumstances. The patient and attorney present particulars explaining precisely how and why the medical defendant should be considered legally in the wrong and caused the injury.
Occasionally, the patient’s own actions could have caused the injuries in addition to the doctor’s or medical affiliate’s negligence.
Referring to an auto accident scenario where the guilty party may have made a sudden turn in front of another vehicle. This is an example of negligent driving. However, if the other person was driving over the legal speed limit, the insurance attorney or a jury may determine the plaintiff was negligent and caused the accident. Under these circumstances, the jury or insurance company may reduce the compensation or amount of the damages.
This is how the case would usually be handled. However, in some states if the plaintiff is even slightly to blame for the accident, there will not be damages awarded to the plaintiff.
Medical malpractice happens when a medical provider fails to observe the guidelines of care, resulting in a patient’s injury or death. This can happen as a result of either a negligent act or an omission or lack of action by the physician.
This can mean the health care professional either failed to properly diagnose the patient or made a mistake during treatment. Adverse medical events can be traced back to sub-standard patient care, forms of medical negligence, or patient abandonment. These cases only become medical malpractice when the mistakes cause actual damage.
Source: Diederich Healthcare’s “2013 Medical Malpractice Payout Analysis”
Under the law, the following conditions must be met to prove medical malpractice:
The doctor violated the standard of care: There are certain medical standards that have become recognized as acceptable medical treatment in the profession. These are the standards of care. Patients should expect these standards of care will be followed and if it can be determined that they have not been followed, the negligence is established.
Injuries are caused by that negligence: In the next step a patient must show that his/her physician violated that standard of care and that a resulting injury would not have happened in the absence of the physician’s negligence. To put it another way, the patient must show that the negligence caused the injury.
Damages resulted from the injury – In addition to showing negligence and an injury, patients must also demonstrate a real loss as a result of the injury. This may be lost wages, severe pain and suffering or medical bills. Some patients are loathe to file suits where damages might be considered small since the cost of mounting a medical malpractice suit can be substantial and could outweigh an award.
Medical Malpractice Definition
Medical malpractice is any instance in which a doctor or healthcare provider deviates from the accepted norms of the profession and causes injury to a patient as a result. The accepted norms of behavior in any given situation depend on how a reasonable professional with the same training and experience would have acted. If another healthcare professional—who was acting reasonably and possessed the same information and level of training—would have taken a different course of action or provided a higher level of care, the provider could have committed medical malpractice.
The attorneys at Medical Malpractice Help have experience in malpractice and medical malpractice law. For a free consultation about your case, call 1-855-MED-ASKS today.
What Does the Law Say About Medical Malpractice?
As a general rule of thumb, the plaintiff bringing a medical malpractice claim must prove four “elements”—the legal requirements needed to establish a case. These four requirements typically include:
The Provider Had a Duty of Care to the Patient.
To be culpable in a malpractice situation, a provider must have had a duty of care to the patient through a doctor-patient relationship. This duty does not have to be explicitly defined. Any time a medical provider agrees to offer health-related services to a patient, they have established a duty of care.
The Doctor Failed to Provide an Acceptable Standard of Care.
In other words, the doctor’s care did not satisfy the accepted norms of the profession given the situation. If a reasonable professional would have offered a higher level of care than your doctor, you could be the victim of malpractice.
The Patient Suffered Injuries as a Result of the Provider’s Substandard Care.
The patient and their attorney must be able to establish a clear link that shows a cause-and-effect relationship between the doctor’s actions and the patient’s injuries. Those injuries can be physical or psychological.
Damages Resulted From the Patient’s Injuries.
To qualify as malpractice, the patient must have incurred actual damages from their injuries. These damages could be economic, meaning they have dollar values, or they can be non-economic, meaning they are more subjective and not easily quantified. Economic damages include medical bills, lost income from work, and reduced earning capacity. Non-economic damages include emotional anguish, pain and suffering, and loss of consortium.
What Are the Types of Medical Malpractice?
A doctor’s actions or inactions do not have to fall under a specific category to be medical malpractice. Liability can result from any situation that meets all of the above criteria. That said, the majority of medical malpractice cases involve one or more of the following situations.
Failure to Diagnose
an injury or illness can be a form of medical malpractice. The standard here is that another doctor in the same situation and with the same training most likely would have made the diagnosis.
If a doctor misdiagnoses a patient with the wrong medical condition, it could also constitute malpractice. This error often results in the patient’s actual condition going untreated. Sometimes, complications can arise from the doctor treating the wrong condition. If a doctor makes the wrong diagnosis, but evidence suggests that a reasonable physician would have been able to make the correct diagnosis, malpractice most likely occurred.
Surgical procedures generate more malpractice claims than any other field of medicine. Sometimes these errors occur during the procedure itself, such as performing surgery on the wrong site. In extreme cases, patients have even had the wrong limb amputated. Other surgical errors include not properly prepping a patient and failing to conduct an adequate patient history to identify potential complications.
Inadequate Post-Operative Care
A doctor’s duty of care to a patient does not end when they send the patient home after a procedure. Many surgeries and other medical procedures require extensive post-operative care. The level of care a patient receives during this period can affect the speed and success of their recovery. If a doctor fails to uphold the standard of care during this period, the patient’s recovery could stall, or their overall health could worsen significantly.
How Can I Talk to a Medical Malpractice Attorney Today?
The legal team at Medical Malpractice Help wants to help you get answers to any questions you have regarding your case. To set up a time to speak with one of our medical malpractice lawyers for free, call us today at 1-855-MED-ASKS.
Medical Negligence vs. Medical Malpractice
While medical negligence and malpractice are similar, they are not the same. Medical malpractice is an active disregard for the necessary steps to providing accurate and ethical health assistance. Medical negligence is a breach of duty or a failure to comply with certain standards. Negligence is often associated with inattention on the health care provider’s part and can result from poor doctor-patient communication. – Source: Diederich Healthcare’s “2014 Medical Malpractice Payout Analysis”
Causes of Medical Malpractice
The chart above outlines the broad categories of successful medical malpractice lawsuits. Behind each of them lie multiple reasons for their happening. Here is a sample:
Inadequate Diagnoses: Failure to properly diagnose a patient is a dangerous mistake that can cause the patient additional pain, expenses or even end their life.
If a patient is diagnosed incorrectly, the patient may receive treatment for a problem that does not exist – medications or other procedures that will make him/her sick in new ways.
When patients are diagnosed too late, their condition may worsen or become untreatable. In particular, if cancer is not properly diagnosed it gains a tighter foothold in the patient’s body and makes treatment difficult if not impossible.
And when diseases or conditions are not diagnosed at all, the condition may result in death. Failure to diagnose and competently treat a patient will ensure that the patient does not heal. A medical provider should never give up on testing or treatment until the patient is healthy again.
Surgical errors: Surgical errors can take many forms, including wrong site surgery. However, most of these surgical errors can be avoided easily by doctors who initiate clear communication and follow established procedures, including initializing the surgery site beforehand. Other common surgical complications include acute respiratory failure, post-operative infections, blood clots, metabolic problems, poor nursing care, or wound reopening.
Anesthesia mistakes: The art of putting patients “under” for surgery is not always exact. Standard procedures require that anesthesiologists check the weight and physical condition of the patient. They also check for drug allergies and any history of illness that could have an impact on the effectiveness of anesthesia.
Common errors include
- Dosage error
- Delayed anesthesia delivery
- Failure to monitor the patient
- Hazardously prolonged sedation
- Failure to recognize and respond to anesthesia complications
- Failure to properly inform a patient of instructions for before, during or after the procedure
- Faulty equipment
- Other major malpractice areas
Lack of Informed Consent:
Perhaps the most critical step for a doctor beginning medical treatment is obtaining informed consent from the patient. The physician must discuss the patient’s diagnosis, various treatment options, and risks involved with either accepting or refusing treatments. Only after that discussion can a patient make that informed decision on his/her behalf.
If patients are not informed about all potential treatments, they are not given the opportunity to make decisions about medical action. Uninformed patients have also may not heard all of the risks that may be involved with treatment, and they have not had the chance to bring up important health concerns.
Doctors who treat patients against their wishes are doing so with a reckless disregard for the patient’s rights. Patients retain the last say in their medical treatment. It is a patient’s choice what may, or may not, be done to the body. An exception is made in emergencies, since the patient may not be conscious or coherent. If a patient’s condition is life-threatening, and a medical professional cannot obtain informed consent, the law states that the provider may attempt to save the patient’s life. Medical malpractice typically can not apply to emergency situations.
It’s not just doctors: Hospital employees, such as paramedics, nurses, and medical technicians, can be responsible for negligence charges against a hospital. Serious injuries and even death to patients can be the result of this hospital negligence, as these patients may provide the bulk of the care to patients.
When patients enter a hospital, they believe their care will adhere to the usual conventional standards. However, due to a number of possible factors, such as understaffing or overworking, patients may not receive the care from these professionals they deserve.
Trends in Medical Malpractice
Estimates of deaths due to medical errors or negligence vary widely. A compilation of studies published by the Civil Justice Resource Group indicates as many as 200,000 hospital patients die due to medical accidents and of those up to 120,000 are due to negligence. Another study in the Journal of Patient Safety puts the number of deaths at more than 400,000.
Researchers generally agree that only about 2% of malpractice victims actually take action against doctors or hospitals.
Source: Diederich Healthcare’s
Source: New England Journal of Medicine
“2014 Medical Malpractice Payout Analysis”
Awards to malpractice victims have declined over the past decade. In 2003 nearly $5 billion was awarded in malpractice actions. That number steadily declined until 2012 when $3.6 billion was paid. In 2013 the total climbed slightly to $3.7 billion.
A Department of Justice (DOJ) study found that the average injured patient waits 16.5 months before filing a medical malpractice lawsuit. Once the suit is filed, it takes an average of 27.5 months to reach resolution of a medical malpractice case.
According to a 2009 Congressional Budget Office Report, the total direct costs to healthcare providers resulting from medical malpractice liability (including malpractice insurance, settlements, awards, and administrative costs not covered by insurance) was $35 billion in 2009 – about 2% of total U.S. healthcare expenditures.
In 1999, the Institute of Medicine published a report titled “To Err Is Human.” This report focused on American hospitals and the number of preventable medical errors per year. Since the report was published, the number of inaccurate diagnoses, adverse drug effects, surgical mistakes, and unnecessary infections has grown. The increase can partially be attributed to the surge of American citizens seeking medical assistance, combined with the lack of sleep experienced by many hospital professionals.
- A sum of 225,000 Americans die each year from all forms of medical malpractice put together.
- 98,000 people die in hospitals each year from preventable medical errors.
- 80,000 hospitalized patients develop central-line infections from errors during insertion of a catheter.
- 30,000 people die each year from central-line infections.
- 70% of adverse events that take place in American hospitals are preventable.
- Only 2% of all medical malpractice victims seek legal action.