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What is Medical Malpractice and Do you have a case?

Susan Melony

Medical malpractice is one of the many reasons people might hire a personal injury lawyer, but you may not be aware of exactly what malpractice is and what it’s not. While every state is going to have its own unique set of laws and regulations guiding medical malpractice claims, the following are some of the general things to know.

What Is Medical Malpractice?

First, what is medical malpractice?

Medical malpractice laws can be complex in addition to varying by the state, but in general, medical malpractice means that administered medical treatment fell below an accepted medical standard. That sub-standard care then must have resulted in harm.

If a medical professional makes a mistake, but it doesn’t result in harm to the patient, it’s not a malpractice case.

A general standard to determine the medical standard of care is that whatever was done would be what another professional with the same experience and training would do in the same circumstances.

Some of the examples of medical malpractice include:

  • Not administering the right amount of anesthesia or monitoring the amount of anesthesia given

  • Mistakes in monitoring an unborn child’s heartbeat during labor

  • Not accounting for all instruments including sponges after surgery

  • Giving medications that someone has a known allergy to

  • Injuring a patient because of improper transport

  • Not diagnosing a medical condition—in this situation, the standard is that a competent doctor would have been able to diagnose the illness or would have made a different diagnosis which would have led to a better outcome

  • Improper treatment—this is a fairly generic example of medical malpractice, but basically, it means that regardless of the specifics of a situation, the doctor treats a patient in a way that no other competent doctor would have

  • Not warning a patient of known risks

What’s important to understand is not just what medical malpractice is, but also what it’s not.

There is never a guarantee in medicine, and just because something doesn’t turn out the way it’s hoped it will, it doesn’t equate to malpractice.

Even with the best efforts of a medical provider, treatments can and do go wrong. There are issues when treatments are ineffective all the way to when complications occur.

A few situations can represent clear-cut issues of malpractice, whereas most situations are gray. For example, performing a procedure that isn’t related to an emergency and to which a patient didn’t consent to can be considered malpractice. Failing to inform a patient of a serious risk before a treatment or procedure can be another common malpractice situation, as can leaving a foreign object like a surgical sponge inside a patient.

Do You Have a Claim?

It’s difficult to meet the standard for a malpractice claim because if it weren’t this way, it would be very hard, if not impossible for healthcare providers to do their jobs.

Consider the following if you wonder whether or not you have a case:

  • You need to show that you had a doctor-patient relationship. You can’t sue a doctor, for example, because you overheard something they said. You have to be seeing a doctor, but this gets more complex if you are suing a consulting physician who didn’t provide direct care.

  • Negligence has to be demonstrated, and this goes beyond you not being happy with the results of a treatment or procedure. You would need to have a medical expert discuss in court how your treatment was a deviation from the standard.

  • You will need to show that the negligence of the healthcare provider caused an injury, and again, it’s tough to prove this because you may have already been sick or injured when you sought care.

  • The damages that you’re suing for have to be specific in medical malpractice cases. You would have to show physical or mental harm, additional medical bills related to the negligence, or lost earning capacity, as examples.

Special Considerations

Along with knowing the above, you should know there are certain specialized requirements if you are going to bring a medical malpractice case against your care provider.

There are special procedures that guide these cases in nearly all states.

For example, in most states, you have to bring a claim pretty quickly, and it can be anywhere from six months to two years. This period of time is known as the statute of limitations, and if you don’t bring your case within that window, it will be dismissed.

Most states also require medical malpractice review panels.

The claim is submitted to the panel, and they then hear arguments and review all the evidence. The panel doesn’t make a decision that ultimately awards damages, but it’s just an obstacle you have to go through.

The conclusions of the panel can be presented in court, and if the panel doesn’t find evidence of malpractice, it’s likely the case will be thrown out of court.

Expert opinions are also central in medical malpractice cases. What exactly makes someone an expert varies by state, but it’s usually someone with experience in the specific issue at hand.

As was briefly touched on, most states have formal pre-filing requirements in these cases. The goal is to encourage settlement and eliminate frivolous cases. If you don’t meet the pre-trial requirements, even if you have a strong case it may be thrown out.

You may also be required in your state to formally let health care providers and insurance companies know that you are planning to file a lawsuit.

This may encourage settlement, but not always.

The best thing you can do if you think you may have a viable medical malpractice case is to contact an experienced attorney. These cases are not only highly complex but can get messy quickly and a lawyer can be a buffer between you and healthcare and insurance companies.

An experienced lawyer will also be able to best guide you through each step of a process that can otherwise be challenging to navigate.