Liability for Non-Performed Medical Procedures

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 What Is a Non-Performed Procedure?

A non-performed procedure occurs when a doctor fails to diagnose and treat a patient’s condition, which causes the patient to suffer an injury. In conditions where early treatment is important to a patient’s survival, liability for non-performed procedures is common.

These conditions can include lung cancer, breast cancer, colon cancer, heart attacks, or appendicitis. As all of these conditions require early treatment, a failure to diagnose can be fatal to the patient and can lead to a claim of medical malpractice.

Can a Doctor Be Liable for Not Performing a Procedure?

All doctors have a duty to abide by a certain standard of care. Essentially, they are required to act as a reasonable doctor in good standing would in a similar situation. The doctor might be liable for medical malpractice if their conduct falls below this standard and his actions cause injury to the patient.

In order to succeed in a medical malpractice case for a non-performed procedure, the patient has to show that the doctor was negligent in failing to diagnose the patient’s condition earlier. Medical malpractice cases require proving that the patient would have been better off if the doctor had diagnosed and treated their condition in a timely manner. It is usually easy to prove this if the medical condition gets more serious and fatal over time, such as cancer.

What Is Medical Malpractice?

When a doctor, another medical professional, or a healthcare organization fails to adhere to the standard of care for managing, diagnosing, or treating a patient, the patient is injured. This deviation from the standard duty of care required of all medical professionals usually stems from an act of negligence.

An injured patient can sue a negligent medical professional under medical malpractice law. They are able to recover damages for the harm caused by their substandard behavior.

It will depend on the facts of a specific case and the requirements of the medical malpractice laws enacted in your state whether a medical professional can be held liable for a patient’s injuries. Standards and regulations for medical malpractice can even vary among jurisdictions within the same state.

What Is Medical Malpractice Liability?

Medical malpractice liability refers to who should be held liable for a patient’s injuries. The party responsible for the patient’s injuries is generally the one who breached their duty of care. Identifying who exactly is responsible can sometimes be difficult. This is due to the fact that medical malpractice liability frequently involves several parties.

It is possible to assign medical malpractice liability to a doctor and their nurse (or other medical personnel) when their combined negligence caused a patient’s injury. For example, if improper instructions were given or a medical professional failed to correct another, both parties may be liable for their mistakes.

In addition, the organization itself (e.g., a hospital organization) can also sometimes be held liable for medical malpractice, especially when a medical organization’s overall policy or quality of care falls beneath the necessary duty of care standard.

Medical malpractice can be committed by general practitioners, nurses, hospitals, surgeons, dentists, psychiatrists, chiropractors, gynecologists, and office staff.

How Is Medical Malpractice Proven in a Lawsuit?

There are a number of elements that must be met before medical malpractice can be established. In order to prove medical malpractice liability, a plaintiff must show the following:

  • It is the medical professional’s duty to act reasonably and within the medical standard of care in overseeing the patient’s health (e.g., diagnosing, treating, etc.).
  • In some aspects of the patient’s health, the medical professional failed to meet the proper standard of care (i.e., their duty). Thus, they breached their duty of care to that patient.
  • The patient’s injury was caused by the negligent conduct of the medical professional.
  • The injury resulted in measurable damages to the patient.

Furthermore, if a lawsuit is specifically filed against an organization or its administrative staff, it must be proven that the medical staff was negligently trained or supervised.

What Are Some Common Defenses in a Medical Malpractice Claim?

A defendant in a medical malpractice lawsuit may be able to raise several defenses against the claim, including:

  • Statute of limitations: A person’s time limit to file a specific legal claim is known as a “statute of limitations.” Many states require that a plaintiff file a medical malpractice action within two years. As a result, if this time limit has expired, the plaintiff will be barred from bringing their lawsuit and thus will lose their right to recover. These time limits vary by jurisdiction.
  • Contributory negligence: In states that follow contributory negligence theory, if proven, this defense will prevent a plaintiff from recovering from their injuries. The defendant must prove the plaintiff’s negligent conduct contributed to the plaintiff’s injuries. Otherwise, the defendant cannot be solely liable. States that apply the doctrine strictly will bar a plaintiff from recovering damages.
    • Suppose, however, a state follows the modified comparative negligence theory. Plaintiffs who are less than 51% at fault for their injuries may still be able to recover some damages in that situation, though they will be reduced.
  • Lack of proof or fault: If a plaintiff fails to prove that a medical professional fell below the standard duty of care or cannot show that they were the ones responsible for the patient’s injuries, then this may serve as a defense to a medical malpractice claim as well.

State Limits on Medical Malpractice Recovery

Despite being able to recover monetary damage awards in medical malpractice lawsuits, a majority of states have enacted statutes that limit the number of damages that a plaintiff can receive. Such limits or restrictions are generally referred to as “damage caps.”

Damage caps change from state to state, so a plaintiff suffering the same harm in one state may recover more for the same injury than a plaintiff suffering the same harm in another state. For instance, many states cap damage awards at $250,000, while others allow the plaintiff to collect much more before being restricted.

In Wisconsin, for example, medical malpractice lawsuits are limited to $750,000 in damages, while in California, they are limited to $250,000. These limitations are intended to prevent litigants from abusing the civil court system and from filing frivolous lawsuits.

In addition, a minority of states do not even impose damage caps. Accordingly, if a plaintiff brings a medical malpractice action in Wyoming or Kentucky, they will not be restricted in collecting their monetary damages.

Last but not least, wrongful death lawsuits in certain states are not subject to damage caps. Therefore, if the family of a deceased patient files a wrongful death suit based on a medical malpractice case in Ohio, Oklahoma, Utah, or New York, they will not be limited in the damages they can receive in those states.

Do I Need an Attorney?

When a condition is not diagnosed in time, it can have very serious side effects. Contact an attorney right away if you believe your doctor should have discovered and treated your medical condition earlier. A qualified personal injury lawyer or medical malpractice lawyer can advise you on your claim and can assist you with filing the necessary paperwork with the court.


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