When It's Medical Malpractice—and When It Isn't

A negative treatment outcome doesn't mean your health care provider has committed medical malpractice.

By , J.D. · University of San Francisco School of Law

Medical malpractice can occur in countless ways across a variety of health care scenarios. But it's important to keep in mind that just because something goes wrong—or the patient's condition goes from bad to worse—that doesn't always mean the patient has a legitimate medical malpractice claim. In this article, we'll examine a few negative-outcome treatment scenarios that would likely give rise to a valid medical malpractice case, and a few that probably wouldn't.

When It Might Be Medical Malpractice

All legitimate medical malpractice cases have one thing in common: the health care provider's action (or inaction) fell short of the appropriate standard of care under the treatment circumstances. That usually means the provider was negligent, but in rare cases a doctor's recklessness can spur a malpractice case.

Medical Negligence

Medical negligence occurs when a doctor or other health care professional provides sub-standard care to a patient—in other words, the health care professional fails to provide the type and level of care that a prudent, local, similarly-skilled and educated provider would act with in similar circumstances. Learn more about the medical standard of care.

Negligence that rises to the level of medical malpractice can occur in a number of different situations, including the failure to diagnose a harmful condition, the failure to properly advise a patient of the serious risks of certain treatment, and unacceptable errors during the performance of surgery and other procedures.

Doctors aren't perfect, and medical malpractice law does not require perfection. Most medical malpractice cases turn on these questions: What was the appropriate medical standard of care in the situation in question? And did the defendant adhere to or deviate from that standard? Both sides of the case (doctor and patient) will likely turn to medical experts to try to bolster their arguments. Learn more about proving medical negligence and how medical expert witnesses can help your case.


It's a rarity in the medical world, but in some instances a doctor's action (or inaction) may be considered reckless. For example, a doctor who performs surgery or some other risky medical procedure while under the influence of drugs or alcohol will likely be said to have acted recklessly. Or a doctor may be charged with administering potentially lethal levels of medication to a patient in contravention of accepted medical practices, as in the 2011 criminal case of Dr. Conrad Murray (Michael Jackson's doctor).

When It's Probably Not Medical Malpractice

These scenarios (on their own) likely won't amount to a viable medical malpractice case.

The Patient's Condition Gets Worse

A doctor cannot be said to have committed medical malpractice simply because a patient's condition became worse during the course of treatment. Sometimes a doctor is unable to treat (let alone cure) an illness, and even when a certain condition is considered treatable, there is no guarantee that every patient will respond to treatment in every situation. As long as the doctor acted with reasonable care and skill in choosing and carrying out a course of treatment, typically no medical malpractice can be said to have occurred, even when a patient's condition takes a (sometimes unexpected) turn for the worse.

The Patient's Condition Is Untreatable

Similarly, since not all illnesses and health problems are treatable, a doctor who correctly diagnoses a health problem—and makes sound decisions in deciding how to proceed with the patient's care—cannot be said to have committed malpractice simply because the patient's condition is not treatable, or is terminal. Simply put, medical malpractice laws aren't in place to offer a remedy for unfortunate (but sometimes unavoidable) health care outcomes such as terminal illnesses and deaths. They're in place to provide legal protection when the treatment that a patient is given falls short of acceptable standards of medical care.

For more details on the kinds of treatment errors that could lead to a valid case, see examples of medical malpractice.

Medical Malpractice Cases are Challenging

Even armed with the information in this article, you probably still have questions. Medical malpractice lawsuits are tough to win. They often hinge on complex medical and legal questions, so they require professional skill and experience. If you think you might have a legitimate case, it may be time to discuss your situation with a medical malpractice attorney.

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