Medical Malpractice Claims and Lawsuits

If you've been injured by a careless medical provider, chances are you have lots of questions. What is "medical malpractice?" Do I have a case? How do I make a claim? We'll help you understand the basics and, hopefully, get you pointed in the right direction.

Here are the key takeaways.

• Malpractice is just a fancy name for negligence.
• Negligence means the failure to act with reasonable care.
• When someone's negligence causes you an injury, you might have a case.
• There likely will be some roadblocks in the way of you filing your malpractice case in court.
• You'll need an experienced malpractice attorney to work through those roadblocks.

What Is "Medical Malpractice?"

"Medical malpractice" is just another name for medical negligence, meaning negligence (carelessness) by a health care professional. It typically describes negligence by a person (like a doctor or a nurse) or an organization (like a hospital or clinic) in the health care delivery business.

If we choose to, we can use more specific terms. For instance, if a nurse carelessly gives a patient the wrong medication, that would be "nursing malpractice." When a pharmacist negligently mislabels a pill bottle, we could call that "pharmacist malpractice."

What Are the Elements of a Medical Negligence Case?

To have a medical negligence case, you must prove four elements.

1. Your health care provider owed you a duty of care.
2. Your health care provider failed to meet ("breached") that duty of care.

Together, these first two elements—duty and breach of duty—are what the law calls "negligence." But negligence, by itself, isn't enough to make a malpractice claim. You also have to prove the last two elements.

1. You suffered an injury.
2. The injury you suffered was caused by your health care provider's negligence.

The Duty of Care

To have a medical negligence case, your health care provider must owe you a duty of care. This element involves two questions.

1. When does a duty of care arise?
2. What does the duty of care require?

When Does a Duty of Care Arise?

A duty of care typically arises when there's a professional relationship between you and a health care provider. Here are a couple of examples.

Example: Hospital's Duty of Care

A hospital owes a duty of care to a person who's admitted as a patient. This duty extends to patients who go to a hospital's emergency department but who can't pay for their care.

Example: Doctor's Duty of Care

When you go to your doctor's office or a clinic to get medical care, you have a doctor-patient relationship with your treating physician. By contrast, if you're choking at a restaurant and a doctor happens to be sitting a few tables away, the doctor isn't obligated to treat you. Merely being in the same room doesn't create a doctor-patient relationship.

What Does the Duty of Care Require?

The duty of care requires your health care provider to meet the applicable standard of care. The standard of care describes how careful your provider must be when treating you. Here's how the standard of care is often stated: Your provider must use the same care and skill as a reasonably careful provider with the same training and experience would use under similar circumstances.

That's a mouthful, but here's a simple shorthand: The standard of care requires your provider to be reasonably careful when treating you. It doesn't require perfect or mistake-free care. A bad outcome doesn't necessarily mean that your provider fell short of the standard of care.

The applicable standard of care depends, to a large extent, on the facts of your case. Say the provider who treated you for low back pain is a general practice doctor working in a rural community who has no advanced neurological training or experience. Your doctor won't be held to the same standard of care as a board-certified neurologist with advanced spinal surgery training practicing at a major metropolitan trauma center.

Hospitals, clinics, and nursing homes should have in place policies and practices similar to those that would be adopted by reasonably operated, similarly-situated facilities. The standard of care requires that they provide a reasonably safe patient care environment.

Breach of Duty

After proving the existence of a duty of care, you must prove that your health care provider breached—failed to meet—the duty of care. That is, you must prove that your provider acted less carefully or skillfully than a reasonably careful provider with similar training and experience would have acted under similar circumstances.

Ask yourself this: Would a reasonably careful provider have done what my provider did under these circumstances? If the answer is "no," then your provider might have been negligent.

Let's review a few of the more common ways that providers breach the duty of care.

Diagnostic Errors

A diagnostic error happens when, based on your history and the symptoms you report, your doctor fails to timely and correctly diagnose a condition, or fails to refer you to an appropriate specialist for further diagnostic study. Common diagnostic errors include missing a diagnosis completely, diagnosing the wrong condition, and diagnosing the correct condition too late.

Medication Errors

Medication errors are among the most common of all preventable health care mistakes. They happen in a variety of ways. Your doctor might prescribe the wrong drug, for instance, or the wrong dosage of the correct drug. A nurse might give you the wrong medication. Pharmacists sometimes miss adverse drug interactions with other medicines you're taking.

Surgical and Medical Procedure Errors

Preventable mistakes during surgeries and other medical procedures are another cause of medical neglect. Your surgeon might leave a surgical sponge or medical instrument inside you. A radiologist might perforate a blood vessel or damage an organ during a diagnostic procedure.

Anesthesia Errors

Anesthesia errors can be among the most dangerous of all medical mistakes, leading to brain damage, other permanent injury, or death. Your anesthesiologist has a duty to take an accurate history from you to find out about your drug allergies, other medications you're taking that might lead to adverse interactions, and any problems with anesthesia you've had in the past. Typical errors include:

• giving too much anesthesia
• failing to monitor vital signs for indications of adverse events, and
• improper placement of a breathing tube.

Patient Neglect

Patient neglect frequently happens in nursing home cases. Bedridden and immobile patients often aren't turned or cushioned properly to relieve bedsores, leading to pressure ulcers. Medication errors—over-medicating, under-medicating, and failing to medicate—are common in nursing homes.

Lack of Informed Consent

Failing to get your informed consent for a medication, procedure, or treatment can be a breach of the duty of care. Before you can give your consent to a course of treatment, you must understand how things can go wrong. Except in emergencies or situations where it isn't feasible, your provider must tell you about the most common and serious risks associated with your care.

Injuries and Damages

Injuries are the harms —physical, emotional, or financial—that you suffer because of some medical negligence. The law compensates you for your injuries with damages.

Kinds of Damages You Can Collect

Here are the damages (both past and future) you can collect in a successful medical malpractice case.

• Medical bills and related costs. Amounts you paid, and that you expect to pay in the future, for doctors, hospitals, therapists, and other health care providers, are recoverable as damages.
• Lost wages and benefits. You're entitled to recover all past and future lost wages and benefits. If your injuries make it impossible for you to return to your former job and you have to take lower-paying work, you can be compensated for your diminished future earning capacity.
• Other out-of-pocket costs. This category includes miscellaneous expenses you might incur, like costs for medical equipment, amounts you pay to remodel your home to accommodate permanent physical disabilities, the costs of in-home nursing care, and payments to others for services (like home and yard maintenance) you can't perform.
• Pain and suffering. Pain and suffering damages typically account for the physical pain you experience because of your injuries, as well as the pain and discomfort caused by treatments you have to undergo to heal those injuries.
• Emotional distress. Emotional distress damages compensate you for the fear, anxiety, stress, depression, and other psychological effects of your injuries and recovery. Some states include these damages with pain and suffering, while others allow you to itemize them separately.

Other Damages

If medical negligence results in death, the victim's surviving relatives or estate can bring a wrongful death lawsuit to collect damages. Wrongful death cases, like medical malpractice cases, can be very technical and complicated. You'll want an experienced lawyer to handle the lawsuit for you.

In rare cases—when your provider's care goes beyond simply being negligent to being grossly negligent or reckless—you might be allowed to collect punitive damages. In most states, if you're allowed to collect punitive damages in a malpractice suit, you'll need to follow special rules.

Caps on Medical Malpractice Damages

In many states, so-called "tort reform" efforts have targeted medical malpractice damages, resulting in damage caps. These caps typically limit "noneconomic damages," which include such things as pain and suffering and emotional distress. If they're the law in your state, noneconomic damage caps can substantially reduce the value of your malpractice case.

Punitive damages are another favorite damage cap target. Because they're rarely in play in a malpractice claim, punitive damages caps aren't likely to have much of an impact on the value of your case.

Your Injuries Were Caused by Medical Negligence

This final element—lawyers and judges call it "causation"—is critical. You must prove that your injuries were caused or worsened by, and wouldn't have happened or been as severe without, the medical negligence.

Often, causation follows naturally from the negligence and injuries you've proved. For instance, if an orthopedic surgeon implants the wrong size artificial hip joint and you suffer hip and pelvic injuries, causation likely won't be an issue in the case.

But there are situations where doctors will challenge causation, arguing that your injuries would have happened and your outcome would have been the same even if the negligence hadn't occurred. For example, a doctor who fails to timely diagnose cancer can argue that the cancer was deadly and that the patient would have died even if the cancer had been diagnosed sooner.

Note, importantly, what failure to prove causation means. If your health care provider succeeds in arguing that the result would have been the same even if more care had been taken, then you lose. You can't recover damages even if your provider was negligent and you were injured.

Expert Testimony Is Critical

In all but the rarest cases where the malpractice is clear and virtually indisputable, you'll need expert medical testimony to establish the elements of your case—the duty of care, breach of duty, and causation. Your expert's education, training, and credentials must be substantially the same as those of the provider you claim was negligent.

So, for example, if you're suing a board-certified obstetrician with advanced training and experience in managing high-risk pregnancies who practices in a metropolitan area, your expert will have to be a board-certified obstetrician with advanced training or experience in managing high-risk pregnancies with practice experience in a metropolitan area.

After your expert testifies that your provider was negligent and caused your injuries, your provider's expert will testify that there was no negligence, no causation, or both. That's why medical malpractice cases often are called a "battle of the experts."

Roadblocks to Filing Your Malpractice Case in Court

More than half of all states have taken other steps that make filing medical negligence cases more burdensome and costly. Many have enacted pre-filing requirements in an effort to reduce meritless or frivolous claims. Here are two of the most common.

The Affidavit or Certificate of Merit

In states with a certificate or affidavit of merit requirement, before you can file a medical malpractice lawsuit you must have your medical records reviewed by a qualified health care provider, who must certify or sign an affidavit attesting that your claim has merit. Most often, you must file the certificate or affidavit with your malpractice lawsuit.

The requirements for the certificate or affidavit vary from one state to another. In general, though, here's what it must include:

• a list of the medical records the reviewing provider reviewed
• the reviewing provider's opinion regarding the applicable duty of care (that is, what your provider should have done), how your provider breached that duty, and how the breach of duty caused your injuries, and
• an explanation of the reviewing provider's opinions.

Case Screening by a Review Panel

Other states take a different approach, requiring that before you can file a malpractice suit you must have your claim screened by a review panel. The panel holds a hearing and takes evidence and testimony to decide whether your case has enough merit to justify a lawsuit.

The review panel's findings aren't binding, meaning you can file your case in court even if the panel decides that your case lacks merit. But there's a price to be paid if you do file under those circumstances: The provider you're suing can introduce the panel's findings into evidence at the trial. Needless to say, that's a strong deterrent to filing a malpractice case.

You Need an Experienced Medical Malpractice Lawyer on Your Side

By this point, it should be clear that if you're thinking about bringing a medical malpractice claim or lawsuit, you absolutely should have an experienced malpractice lawyer handling the case for you. Rest assured that at every step of the claim and lawsuit process, you'll be dealing with insurance adjusters and insurance company lawyers who know their way around medical malpractice cases and who make quick work of unrepresented parties.

An experienced medical malpractice lawyer will:

• have your case evaluated by qualified experts to find out if it's worth pursuing
• navigate through your state's pre-filing roadblocks so that you can file in court
• understand the laws and court rules that control your case, including the statute of limitations deadline for filing your case in court
• do the work before the trial to discover the relevant facts, both pro and con, about your claims and your provider's defenses
• arrange for all the expert witnesses you'll need to testify before and during the trial, and
• if necessary, try your case in court.

Long story short: Your best chance of winning a malpractice case will come by having expert counsel working on your behalf. Without that help, your chances of success are, at best, slim. Here's how to find a lawyer who's right for you and your medical malpractice case.