Medical Malpractice 101: The Things You Need to Know

Medical malpractice arises in the medical profession when health care professionals do not provide proper medical care to their patients, causing pain, injury, or death.

Malpractice Lawsuits

Errors and negligence

Different scenarios where a mistake or carelessness can cause a lawsuit include:

  • misdiagnosed or failed to diagnose
  • unwanted or improper surgery
  • early discharge
  • negligence to order related tests or to act on reports
  • follow up not done
  • not providing correct medical dose or correct medicine
  • forgetting to check for material inside the patient’s body after an operation
  • doing surgery on the wrong side of the body
  • the victims have constant pain after the procedure
  • severe infections after that happen during the hospital stay
  • wrongful deaths

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For a case to be legally considered medical malpractice, the following conditions must be met:

  • A breach in the standard care of the patient: Every patient in the hospital is entitled to medical treatment and attention by their primary physician. This requirement has been assessed and analyzed by a team of medical professionals in each country to help set a general standard of care. If a healthcare professional fails to abide by this general standard, resulting in deterioration of the patient’s health, they are in breach and committing medical malpractice.
  • The injury was a result of negligence: An important aspect of being a healthcare professional is paying attention to the patient’s current condition, medical history, and occupation to provide the best possible care to the patient. Moreover, appropriate follow-up checkups should be performed. Failing to do any of these has the potential to injure the patient or result in a misdiagnosis. In this scenario, the injury to the patient is believed to be caused by the negligence of the medical personnel.
  • The injury causes significant damages: For a case to be adequate, the victim has to show that significant damages occurred from an injury obtained due to medical negligence or a breach in the standard of care. The damages can be in the form of physical disability, chronic and persistent pain, emotional and psychological trauma due to mistreatment, or stress from bills that were the result of wrongful treatment. If the damages are minor, the cost of following the case might be more costly than the eventual settlement.

In general, if a healthcare professional makes a mistake in initiating or maintaining appropriate medical treatment or does not attend to the patients’ medical needs, resulting in harm to the patient, then the medical practice has been committed. In this case, appropriate action needs to be taken against the physician.

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However, it’s important to note that healthcare professionals also commit medical malpractice if they fail to take consent of the patient before performing a medical procedure, no matter how small. Similarly, if a surgeon or a doctor fails to provide all the information about the patient’s treatment plan, including the risks and complications of the treatment, they are liable for any harm that occurs and can be sued for it.

Probability Of Medical Malpractice Claims In These Medical Specialties

Certain medical fields have high rates of medical malpractice claims mostly because of the presence of high stress situations, sensitive nature, and a high probability of chronic complications. These medical professions include:

  • Obstetrics
  • Surgery
  • Radiology
  • Anesthesiology
  • Emergency room medicine

Surgeries And Medical Malpractice Lawsuit

Amongst the top five medical fields that are most likely to be sued for medical practice, surgery has the highest rates of medical malpractice claims. The surgical field has the highest rates mostly because of the mistakes made by the surgeon during the surgery. These mistakes may result in long-term, debilitating medical conditions, known as iatrogenic conditions. These conditions can also arise from misdiagnosis and consequently mistreatment by the surgeons.

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The surgical sub-specialties most commonly involved in these claims are:

  • Neurosurgeons
  • Bariatric surgeons
  • Obstetricians
  • Trauma surgeons
  • General Surgery

The mistakes of surgeons often result in long-term suffering, consistent pain, disability, and other medical harms. But these medical complications also ruin the patient’s quality of life, resulting in psychological and financial harm. If any of these occur due to a mistake of the medical personnel and the damage done was significant, then the patient is a victim of medical malpractice and has a right to make an appropriate medical practice claim.

Who is involved in a medical malpractice case?

A medical malpractice trial is a long and tedious process, requiring testimonies from several members of the medical team, evidence of significant harm to the victim, and several different professions to help analyze and assess the claim.

The people involved in a medical malpractice case are:

  • The plaintiff: It is the person who is dissatisfied with the treatment provided by the healthcare professionals. The plaintiff can be the victim themselves or a legally authorized person acting on behalf of the victim. In case of medical malpractice resulting in the death of the patient and the victim, the next of kin in-charge of the inheritance acts on behalf of the victim, hence they are the plaintiff.
  • The defendant: The person who is being sued is called the defendant, which in medical malpractice trials are healthcare professionals or an entire hospital. The defendants in medical malpractice suits are usually surgeons, primary care physicians, consultants, nurses, technicians, and so on.
  • The prevailing party: This refers to the party that has a ruling made in their favor or has won the case.
  • The decision-makers: Although a judge presides the case and the courtroom, it is the jury that makes the decision in each lawsuit, either in the favor of the defendant or the plaintiff.

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Factors of a medical malpractice lawsuit

  • Duty: The health care provider or hospital owed the duty.
  • Breach: The breach leads to an injury. For example, if a physician commits a breach of their duty of care, they are responsible for causing suffering to the victim.
  • Causation: The victim must prove that the physician’s activities were the immediate reason for the damage.
  • Damage: Actual damage or harm occurred to the patient, which can be emotional, financial, and physical. The victim must prove that the physician’s action caused the harm.

These four factors are important for a medical malpractice lawsuit to be even considered. The absence of any of them or the lack of evidence proving the presence of a factor can result in the dismissal of the claim by the court.

How does a plaintiff file a lawsuit in a court of law?

  • The most important thing to keep in mind when planning to file a medical malpractice claim is to do so before the statute of limitation runs out. Since this time period differs from state to state, it is important to check the exact time period and act accordingly. There are some exceptions to this rule, but generally, after the statute of limitation runs out, the plaintiff is no longer eligible to make a claim and seek damages. In New York, for example, based on this helpful resource, the statute of limitation runs out after 30 months. So, make sure you check when the statute of limitations runs out in your state if you are considering litigation. Although there might be some exceptions, in most cases, though, when the status of limitation runs out, you can no longer seek damages.
  • After ensuring the statute of limitation has not passed, the plaintiff or their legitimate agent must file a lawsuit in a court of law. Before the trial begins, the plaintiff and the defendant have to share information through discovery. This may include requests for documents, testimonies, and interviews. This step can be long and requires a thorough analysis of testimonies and interviews by both parties to prepare for the trial.
  • If during the analysis, the plaintiff or the defendant seems to reach an agreement and wish to settle, they can do so without the case going to trial. However, if both parties believe themselves to be right and do not wish to settle, the trial goes to court and needs to be presented in court in a matter-of-fact manner. Both parties need to provide evidence supporting their claims and often expert witnesses are called to testify.
  • After all testimonies, the jury confers and reaches a verdict in favor of or against the plaintiff. The judge then, after the ruling, decides what the appropriate damages are.
  • In most prosecutions, both the defendant and plaintiff will present experts to explain what principle of care was required. The fact-finder must then evaluate all the proof and agree on which party is the most responsible.
  • An outcome will be given by the fact-finder for the prevailing party. In other words, the judge will agree on who wins. If it is the plaintiff, the judge will then decide on damages.
  • The losing party may request a new trial by appealing.
  • In some courts, if the plaintiff expects a bigger settlement, they may move for extra, which means asking for an examination of the damages and granting a larger amount.
  • If the defendant is disappointed with the judgment, they may ask for remittitur, where a judge could lower the cost of damages or even throw out the judgment.

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What kind of damages can the plaintiff get?

  • The plaintiff may be permitted compensatory and corrective damages.
  • Compensatory damages may include economic losses, including lost earning capacity, life care expenses, and medical expenses. Usually, past and future losses are evaluated.
  • Compensatory damages may also include non-economic failures, which evaluate the injury itself, as well as the psychological and physical harm.
  • Punitive damages are only awarded if the defendant is found guilty of brutal or purposeful misbehavior. Punitive damages are a form of sanction. It is compensation in addition to actual damages.
  • Lawsuits tend to be expensive, time-consuming, and disturbing. Anyone who is evaluating to start a lawsuit should weigh up the probable pros and cons before taking action.
  • If the injury is minor, the patient may waste more on the lawsuit than the eventual money they will recover.

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An Introduction to Medical Malpractice in the United States

Book Review of Medical Malpractice Law: A Comparative Law Study of Civil Responsibility Arising from Medical Care

Malpractice definition, Garner, Bryan A. (2009). Black’s Law Dictionary (9 ed.). West. ISBN 0314199497.

“Malpractice”. Merriam-Webster, Inc.



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