Medical malpractice (also known as “Med Mal”) occurs when a patient is injured by a hospital, doctor or other health care professional, because of a negligent act or omission.

The rules about medical malpractice vary from state to state, but there are some general rules and required elements that apply to most medical malpractice cases.

General Rules and Required Elements for Med Mal Claims

The following elements must be shown in order to prove that medical malpractice occurred:

  • Doctor-patient relationship existed. A patient must be able to show that they had a relationship with the doctor they want to sue. This means that a doctor began seeing you and treated you. This is the first and most crucial element to prove, because you need to establish the relationship in order to prove duty (discussed later).
  • The doctor was negligent and that negligence was the direct cause of the injury. In order to sue for malpractice, you must be able to show that the doctor caused you harm in a way that another doctor, under the same circumstances, would not have, and as a result the injury occurred. 
    • The standard of care for a doctor is "reasonably skillful and careful." Whether the doctor was reasonably skillful and careful is typically the foundation of a medical malpractice claim. The patient must show that it is "more likely than not" that the doctor’s negligence directly caused the injury. Medical expert witnesses are typically required to discuss the appropriate medical standard of care and show how the defendant did or did not deviate from that standard.
  • The injury led to actual harm. A patient must be able to demonstrate that they endured an actual injury that could be remedied by damages regardless of how apparent it is that a doctor failed to maintain his duty of care. Here are some generalized types of harm patients can sue for:
    • Pain from the injury;
    • Disability from the injury;
    • Associated medical bills; and
    • Lost wages due to inability to work

Duty of Care Requirement for Medical Malpractice Lawsuits

As previously mentioned medical professionals are held to a specified standard of conduct commonly referred to as “duty of care”. Doctors are held to a higher standard of care because he or she receives special training and education to care for patients.

In medical malpractice lawsuits the plaintiff must prove that the medical professional breached his duty of care to the patient. The duty of care required from a doctor to a patient is measured by the care and skill of the average health care provider who practices the provider’s specialty.

To show that a breach of the duty of care occurred, the plaintiff must prove that the doctor’s actions fell outside the scope of acceptable medical practices.

During all of the years of schooling and training, the doctors and nurses are taught accepted and standard methods for treating certain illnesses and conditions. When a doctor or nurse fails to follow this standard method by either doing nothing or doing something that is not accepted by the medical community, the doctor or nurse has breached the duty of care required by the law.

What are Some Common Types of Medical Malpractice?

There are many different examples of medical malpractice but most claims fall into one of these three categories:

  • Failure to Diagnose: If a doctor fails to properly diagnose a patient they may be liable for a med mal suit.
  • Improper Treatment: Improperly treating a patient may include administering or prescribing the wrong dose of a drug, delaying or rushing surgery, or failing to take necessary safety measures.
  • Failure to Warn a Patient of Known Risks: A doctor may be liable for medical malpractice if a patient is injured by a procedure, medication, or course of treatment that they were not properly warned about. This is formally known as “failure to perform duty of informed consent.”

What are Some Common Medical Malpractice Errors?

Medical malpractice can take many forms. Here are some additional and more specific examples of medical malpractice that could lead to a claim:

  • Failure to diagnose;
  • Incorrect diagnosis;
  • Misreading laboratory results;
  • Unnecessary or excessive surgery;
  • Surgical errors such as non-sterile environments;
  • Improper medication or dosage;
  • Failure to acknowledge medication allergies;
  • Poor follow-up or lack or proper aftercare;
  • Early and improper discharge;
  • Disregarding or not taking appropriate patient history;
  • Failure to recognize symptoms; and/or
  • Rushed diagnosis or surgery.

What is Considered Proof in Medical Malpractice Cases?

The proof in medical malpractice cases relies vastly on the testimony of expert medical witnesses. An expert medical witness for the plaintiff will evaluate the plaintiff’s condition by looking at the patient’s files or examining the plaintiff.

The expert witness will also investigate the circumstances surrounding the injury, what actions the doctor or nurse took, and compare the information to common practices in that particular medical practice area. Both parties provide expert testimony in medical malpractice lawsuits, and it is usually up to a jury to decide if a duty was owed and breached.

Are there Special Rules and Procedures for Medical Malpractice Claims?

States typically have their own special rules and procedures for medical malpractice claims. Below is generalized list, but it’s important to know what your state’s specific rules are before filing a lawsuit.

  • Statute of Limitations: In most states, you must bring a medical malpractice claim within six months and up to two years after the injury, depending on the state. You will not be able to file a lawsuit if the time limit has passed regardless of the facts of your case or the extent of your injury..
  • Special Review Panels: Before a medical malpractice suit can be brought to court, many states require that the case be reviewed by a special review panel. 
    • This panel of experts is designed to hear arguments, review evidence and expert testimony, and then provide an opinion on whether malpractice has occurred. 
    • The outcome of a panel decision does not replace an actual medical malpractice lawsuit, is it simply a preliminary step to a malpractice suit. The findings of the review panel are often used in court to determine if a case should go to trial or not.
  • Requirement for Expert Witness: As previously stated, most states require a medical expert to provide expert testimony at the panel stage, as well as, at trial. An expert medical witness generally must have experience in the particular medical field that is being disputed. 
  • Damage Awards: There are limits to the amount of damages (typically money) that a patient may get from a medical malpractice suit. This is commonly called a “cap.” However, the amount of damages depends on the extent of the injury and negligence.

Do I Need an Attorney?

If you feel that you have been the victim of medical malpractice you should contact a personal injury lawyer near you. An experienced attorney will be able to make sure you file within the allotted time period, also called the statute of limitations.

Additionally, a lawyer will be knowledgeable on the various statutes, procedures, how to gather expert witnesses and determine an appropriate amount of damages to seek. Medical malpractice is a very emotional and complex area of law and a suitable attorney can help ensure the process is handled correctly.