Medical malpractice occurs when a doctor, medical professional, and/or healthcare organization fails to meet the standard duty of care that is required when:

  • Managing;
  • Diagnosing; and/or
  • Treating a patient, which results in an injury to that patient.

This deviation from the standard duty of care that is required of all medical professionals generally begins with an act of negligence, which will be further discussed later on.

Medical malpractice law is what allows an injured patient to bring a claim against a negligent medical professional, as well as recover damages for the harms that were caused by their substandard conduct.

However, it is important to note that whether a medical professional can be held liable for a patient’s injuries will not only depend on the facts of each specific case, but also the various rules and requirements of medical malpractice laws that are enacted in a specific state. Additionally, there are some cases in which the standards and regulations for medical malpractice vary between different jurisdictions within the same state.

Some of the most common examples of medical malpractice claims include, but may not be limited to:

  • Incorrectly diagnosing or failing to diagnose a patient;
  • Prescribing the wrong treatment or wrong medication;
  • Operating on the wrong body party, such as amputating the patient’s left leg instead of their right leg;
  • Failing to follow-up or provide care instructions after a patient receives a serious procedure;
  • Prematurely discharging a patient before they have recovered sufficiently;
  • Leaving behind medical equipment during a surgery, such as medical instruments or sponges left inside a patient;
  • Failing to provide information, or failing to receive informed consent, before a patient underwent surgery; and/or
  • Including incorrect data in a patient’s medical chart, which causes harm to the patient either then or at a later date.

What Is The Accepted Standard Of Care For Medical Malpractice? How Is The Standard Of Care Determined?

Generally speaking, the standard of care for determining medical malpractice is based on how a similarly qualified practitioner would have performed under the same or similar circumstances. The essential standard of care is generally determined by evaluating the performance and abilities of others who are practicing near the doctor who is being accused of malpractice.

However, the baseline standard may vary from state to state. An example of this would be how a rural doctor’s resources will generally be less extensive than compared to those of a metropolitan hospital. As such, this may be taken into account when determining the appropriate standard.

Some examples of the most commonly used standards include:

  • The National Standard of Care: This standard requires a doctor to use the same degree of skill and care as that of a reasonably competent practitioner, in the same medical field, and under the same or similar circumstances;
  • The Locality Rule: The locality rule requires a doctor to possess the reasonable caliber of skill and knowledge that is generally possessed by surgeons and physicians in the locality in which they practice; and
  • The Respectable Minority Rule: If the doctor did not follow the same course of therapy that other doctors would have followed, they can show that their course is accepted by a respectable minority of practitioners.

How Is The Standard Of Care For Medical Malpractice Proven?

In terms of proving the standard of care for medical malpractice claims, the process mirrors that of proving negligence in general. There are four specific elements that the plaintiff must prove before medical malpractice can be established:

  1. The medical professional owed the patient a duty of care to act reasonably and in accordance with the medical standard of care in overseeing the patient’s health. This includes diagnosing, treating, etc.;
  2. The medical professional failed to meet this proper standard of care because they were negligent in managing some aspect of the patient’s health. Essentially, they breached the duty of care that they had to that patient;
  3. The medical professional’s negligent conduct was both the actual and proximate cause of the patient’s injury; and
  4. The injury resulted in the patient suffering measurable damages.

Additionally, if a lawsuit is specifically filed against an organization or its clerical staff, the plaintiff must show that the medical staff was trained or supervised in a negligent manner.

Some examples of items that may be useful for a plaintiff to submit as evidence in order to support their claim include:

  • Medical records;
  • Receipts for medical expenses;
  • Documents that caused a misdiagnosis and/or mistreatment to occur; and
  • Costs associated with their injury, such as additional hospital bills to remedy a surgeon’s mistake.

In the event that actual negligence cannot be proved although it is clear that it existed, an injured patient may still be able to successfully assert their claim. An example of this would be how a patient may not be able to directly prove negligence because they were unconscious during a surgery. In such cases, the patient would need to prove that:

  • They suffered an injury that is not an expected complication of the specific medical care that they received;
  • The injury does not generally occur unless someone has been negligent; and
  • The doctor was responsible for the patient’s well-being at the time of the injuries.

Are There Any Defenses To A Medical Malpractice Claim?

Some of the most common examples of defenses that a defendant to a medical malpractice lawsuit may be able to assert include:

  • Statute of Limitations: The time limit that a person has in which to file a specific legal claim is known as a statute of limitations. Most states require that a plaintiff file a medical malpractice action within two years of the injurious incident. As such, if this time limit has expired, the plaintiff will be barred from bringing the lawsuit and will lose their chance to recover for their injuries. It is imperative to note that these time limits will vary by jurisdiction;
  • Contributory Negligence: In states that adhere to contributory negligence theory, this defense will entirely prevent a plaintiff from recovering a monetary damages award for their injuries. The defendant must prove that the plaintiff’s negligent conduct contributed to their injuries, so that the defendant cannot be held solely responsible for the harm that resulted. States that apply the doctrine in full will bar a plaintiff from recovering. However, if a state follows modified comparative negligence theory, plaintiffs who are less than 51% at fault for their injuries may still be able to recover some reduced amount of damages; and
  • Lack of Proof or Fault: If the plaintiff fails to prove that a medical professional fell below the standard duty of care, or if the plaintiff cannot show that they were the party responsible for the patient’s injuries, this may serve as a defense to a medical malpractice claim as well.

Do I Need An Attorney For Issues With Standard Of Care For Medical Malpractice?

If you believe a medical professional failed to adhere to their standard of care, which resulted in medical malpractice, you should work with an experienced and local personal injury lawyer. An attorney will be most knowledgeable in terms of your state’s specific laws regarding medical malpractice, and can provide relevant advice regarding your legal rights and options according to those laws. Additionally, an attorney will also be able to represent you in court, as needed.