Basics of a Medical Malpractice Claim

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is Medical Malpractice?

A person can file a medical malpractice case when a medical professional fails to treat a patient properly, and the patient is injured as a result. Typical defendants for medical malpractice lawsuits include doctors, hospitals, nurses, and other medical professionals.

Some common medical malpractice claims include:

  • Failure to provide a proper diagnosis or providing a misdiagnosis;
  • Failure to disclose known risks of the treatment;
  • Improper consent or non-consent to receive treatment;
  • Failure to provide an appropriate treatment; and
  • Unauthorized disclosure of confidential information.

While these lawsuits are based on negligence, the court holds medical malpractice defendants to a higher standard because of their professional training. Individuals who seek medical treatment place their health and lives in the hands of medical professionals, so they must be held to a higher standard of care.

What are the Elements of a Medical Malpractice Claim?

To successfully establish a medical malpractice case, you will have to allege the four main elements of a negligence claim: duty, breach, causation, and damages. As noted above, remember that the medical provider will be held to a higher standard.

You will generally have to plead and prove that the defendant did not provide you with the care and treatment that a careful, competent, and skilled medical provider with the same qualifications would and should have provided.

While the law may slightly differ between the states, the following elements will generally have to be met to win a medical malpractice lawsuit:

  • Duty: You must illustrate that the medical professional owed you a duty to provide medical care and treatment. This can be established by showing that a doctor-patient relationship existed. Any medical records that show you were a provider patient will suffice.
  • Breach: Next, you must show that the medical professional breached this duty by failing to provide you with the care and treatment of a careful, competent, and skilled medical provider.
    • This can generally be established through expert testimony from a medical professional with the same qualifications as the defendant.
    • The expert will provide testimony showing that the defendant should have acted differently or provided a different course of treatment when they treated you.
  • Causation: You must also provide evidence that you were injured and that these injuries resulted from the medical provider’s negligent behavior. There will need to be a causal link between the breach and the resulting injuries.
    • For example, if you have surgery and then immediately experience complications resulting in your injuries, you can argue that the medical provider’s negligence directly caused your injuries.
  • Damages: Lastly, you must provide evidence to show that you actually suffered damages from the injury. This is usually in the form of monetary expenses, which can be proved through medical bills or other medical expenses that resulted from your injury.
    • In some situations, you may have a claim for other expenses as well, such as for emotional distress, lost income, or loss of consortium.

What Is a Doctor-Patient Relationship?

To sue a doctor for medical malpractice, you must show that a physician-patient relationship existed. This means that you hired the doctor, and the doctor agreed to the hiring. For example, you can’t sue a doctor you overheard giving out advice while at the airport. A physician-patient relationship likely existed if a doctor examined you and treated you.

Questions about whether or not the relationship existed most frequently arise when a consulting physician did not directly treat you.

What are Specific Damages?

Even if it is clear that a doctor performed below the expected standards in their field, a patient can’t sue for medical malpractice if the patient didn’t suffer any harm. The types of harm a patient can sue for may include:

  • Physical pain
  • Mental anguish
  • Medical bills
  • Lost work time
  • Lost earning capacity

How Soon Do I Need to Bring a Medical Malpractice Case?

In most states, you need to bring a medical malpractice claim quickly. A statute of limitations is the time period in which you must bring a lawsuit. Depending on the state, the statute of limitations on medical malpractice claims may be The years depending on the state. If you don’t file a lawsuit within the specified period of time, the court will dismiss the case, regardless of what happened.

When the clock starts ticking also depends on the state. In some states, the statute of limitations starts running when the negligent act occurs. In other states, the clock starts when the patient discovered or should have discovered the injury.

What Are Some Common Defenses to Medical Malpractice Claims?

Keep in mind that even if you successfully establish the elements of a medical malpractice claim, you still could lose the lawsuit if the defendant has a valid defense to your claim. Whether a defense will hold merit will depend on the circumstances of each individual case. Some common medical malpractice defenses that you should be aware of include:

  • There was no breach of the standard of care because the provider acted as a careful, competent, and skilled medical provider;
  • The defendant was not the cause of the injury because the patient had subsequent treatment that was the cause of their injuries;
  • Contributory negligence of the patient (this is only available in some jurisdictions); and
  • The plaintiff cannot prove that any damages resulted or the damages are uncertain.

What Else Should You Know About Medical Malpractice Lawsuits?

Here are some other important things to know before filing a medical malpractice lawsuit:

  • Medical malpractice cases generally have a shorter statute of limitations, meaning that they must be filed soon after the injury occurs or is discovered. This is typically 1-2 years but will depend on your state’s laws.
    • As soon as you think you might have a case for medical malpractice, you should explore your options, so you do not miss the filing deadline.
  • Typical witnesses include expert witnesses, treating doctors, and friends or family who can testify to your condition.
  • You can usually name both the individual medical provider and the hospital or company where they are employed as defendants in your medical malpractice lawsuit.

While the short statute of limitations seems unfair for injured patients, the reality is that evidence of medical malpractice can fade quickly. Most instances of medical malpractice can be or must be resolved over time due to the discomfort and pain it causes to the patient.

It is not always easy to determine if you have been injured due to medical malpractice. It’s always a good idea to make an appointment with a different physician to determine if your pain/discomfort is due to the nature of your pre-existing injury or a medical error.

Should I Consult an Attorney About My Medical Malpractice Claim?

Medical malpractice lawsuits are generally very technical and complex and contain many deadlines that could compromise your case is missed. If you wish to file a medical malpractice lawsuit, you should consult with a local personal injury attorney. Your attorney can evaluate your case, try to reach a settlement on your behalf, and help you prepare for court events.

Use LegalMatch’s services today to narrow down the issues in your case and schedule a free, confidential consultation with an attorney in your area.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer