General Medical Malpractice Information

The definition of Medical Malpractice and a guide to understanding Medical Malpractice Law, including determining fault, awareness of the statute of limitations, and the process of filing a Medical Malpractice Lawsuit.

Medical Malpractice Defined · Unsatisfactory Results of Treatment or Surgery · Extent of Medical Malpractice · Medical Malpractice Lawsuits · Determining Fault or Negligence · Proving Fault or Negligence · Statute of Limitations · Informed Consent · Certificate of Merit · Standard of Care

Medical Malpractice Defined

Medical Malpractice is defined as an instance in which a medical professional fails to meet the standard of care that is provided by other medical professionals and expected by patients; this negligence must result in loss of income or injury to the patient. Doctors, nurses, dentists, technicians, specialists, hospital workers, and the hospital itself are all considered medical professionals.

Unsatisfactory Results of Treatment or Surgery

Unsatisfactory results of a treatment or surgery, in and of themselves, are not necessarily grounds for a medical malpractice lawsuit. The absolute success of a medical treatment or procedure is not guaranteed, nor is it guaranteed that the results will please the patient. However, a doctor is required to be qualified to prescribe, to treat, or to operate. The doctor must be both knowledgeable and experienced. Furthermore, a doctor’s actions must meet the standard of care expected of medical professionals in his or her field. If the unsatisfactory results are caused by the doctor’s negligence (failure to exercise proper and sufficient care), lack of skill, or lack of knowledge, there may be sufficient grounds for a medical malpractice lawsuit. It is advisable to consult a qualified medical malpractice attorney to determine whether there are grounds to pursue a lawsuit.

Extent of Medical Malpractice

Medical malpractice is a widespread problem, but public awareness of the issue is surprisingly low. Studies estimate that the the annual number of deaths resulting from medical malpractice is between 80,000 and 98,000. In addition to these figures, countless injuries and illnesses occur every year as a result of preventable medical errors. The most staggering statistic is that only about two percent of injured patients pursue legal compensation by means of a lawsuit, according to predictions. A second study found a slightly higher percentage, with almost thirteen percent of injured patients filing lawsuits. Of these, under seven percent of patients recovered damages. Considering the prevalence of this problem, these numbers are extraordinarily low.

Medical Malpractice Lawsuits

Medical Malpractice, unfortunately, is a surprisingly common occurrence. Some studies estimate that between five and ten percent of all hospital patients are subjected to medical malpractice in some form. However, these cases are rarely pursued as lawsuits, and even fewer result in compensation for damages. While the odds may be daunting and the defendants (doctors and their insurance companies) may be intimidating, this should not stop anyone who believes they have a legitimate medical malpractice lawsuit from seeking justice for their suffering. When evaluating a potential medical malpractice lawsuit, there are several factors that are considered prior to filing the case:

1. Negligence: Can negligence on the part of the medical professional be proved? Negligence is primarily tied to the concept of a “standard of care.” The standard of care refers to the manner in which other, similarly qualified doctors would be expected to act in the same situation. Obviously, the more specialized the medical professional’s field, the higher the standard of care.For example, OB/GYN’s are held to quite a  high standard. If a doctor’s actions (or failure to act) meet the standard of care, negligence cannot be proved regardless of the consequences. In order to be considered negligent, a doctor’s conduct must be below the standard of care and must result in harm. The strongest medical malpractice lawsuits typically arise from what should be ordinary procedures that, due to the negligence of a medical professional, result in injury or death. These provide the clearest instances of a doctor’s failure to adhere to the standard of care. Common examples include cancer misdiagnosis, complications during labor, birth, and c-sections, plastic surgery malpractice, anesthesia errors, and mistakes involving prescriptions.
        2. Demonstrable, Serious and Lingering: Solid medical malpractice suits are able to clearly demonstrate that the actions of the medical professional resulted in an injury that is both serious and lingering. Headaches and soreness after a surgery are unlikely to result in a successful medical malpractice lawsuit. The key element to consider is that the injury must meet all three criteria. Therefore, if the headaches fail to go away, if they are incapacitating, and they can be demonstrated, the lawsuit is very strong. Evidence of the injury is important; otherwise it may be dismissed as hearsay. An inability to prove the injury is one possible reason for not filing a lawsuit.
      3. Medical Records: Before filing a medical malpractice lawsuit, it is imperative to obtain all of the patient's medical records. While every individual has the right to have access to his or her records, an attorney can be of assistance in this matter if medical facilities are uncooperative.

Finally, it is important to speak with a medical malpractice lawyer regarding the strength of the case and the prudence of pursuing it. Bringing a weak case can cause emotional strain, as well as the loss of considerable time and money. An experienced attorney will be able to weigh the variables and offer sound advice about the proper way to proceed.

Determining Fault or Negligence

It is a common misperception that medical malpractice is limited to medical doctors. In fact, it applies to all healthcare professionals (including nurses and anesthesiologists), health care facilities (such as hospitals), pharmaceutical companies, and others that provide health care services.

Hospitals: A hospital can be a public or private corporation. Hospitals can be held directly liable for negligence and can also be held "vicariously" liable for the negligence of their employees. "Vicarious liability" means that a party can be held responsible for negligence that is not its own, but of another.

Hospital Negligence: The staff of a hospital is quite large and includes licensed physicians, nurses, physician's assistants, nurse practitioners, and other licensed medical professionals. When hiring medical staff, a hospital is required to make reasonable inquiries into an applicant's education, training, and licensing.  Failure to do so is grounds for a lawsuit under the "corporate negligence" doctrine for their negligent supervision or retention of an individual, in the event that the staff member's negligent care causes a patient to be injured or to suffer unnecessarily.  In summary, a hospital may be held at fault for its own negligence in the event that it does not investigate the credentials of an attending physician before he or she is granted privileges at the hospital, or, if it permits a physician whom it knew, or reasonably should have known, was incompetent or unqualified to treat patients at the hospital.

Hospitals must also ensure that there is a sufficient number of registered nurses on duty at all times in order to maintain quality patient care.  Failure to do so may be grounds for a medical malpractice case, if patients are injured or suffer as a result of the shortage of nurses.  Another area of potential liability for hospitals exists when hospital employees do not appropriately follow the directives of a patient's private attending physician.  On the other hand, if a hospital employee finds the private physician's treatment plan to be clearly flawed or professionally inadvisable, but does not make a reasonable inquiry of the physician to confirm the treatment plan, the hospital can also be held liable. Other areas for which a hospital may potentially be held liable for negligence is considerable include: failure to protect patients from harm, failure to adequately perform clinical tests, failure to keep accurate medical records, and errors in the admission and discharge of patients.

In nearly all cases, hospitals are required to treat, on an emergency basis, people who are seriously injured or ill. Failure to do so may result in hospital liability. Obviously, both federal and state statutes prohibit the refusal of treatment on the basis of race, color, religion or national origin, or on the patient's inability to pay for treatment.

Vicarious Liability: The doctrine of "respondeat superior" holds that an employer may be held liable for the negligent acts of its employees, provided the employee was acting within the scope of his or her duties. According to this principle, a hospital may be held liable for the negligence of its medical staff. This is a very important issue in medical malpractice cases, as it ensures the presence of a financially responsible party to provide compensation for the unjustly injured plaintiff. However, in certain circumstances, healthcare professionals, such as physicians, are legally considered independent contractors and not the employees of the hospital. Consequently, "respondeat superior" cannot be applied because the hospital is not responsible for the negligence or malpractice of doctors who are legally viewed as independent contractors. However, if there is negligence on the part of the hospital (for example, if the hospital should have refused attending privileges to the physician on the grounds that he or she was unqualified or incompetent), then the hospital can be held responsible for this negligence.

Finally, in some cases, a hospital may be vicariously or directly liable for the actions or omissions on the part of contractors it retains in the operation of its emergency rooms and outpatient facilities.  A skilled medical malpractice attorney can advise you as to the specifics of the circumstances surrounding your medical malpractice case.

Pharmaceutical Companies: If a pharmaceutical manufacturer fails to warn a physician about the potential side effects and dangers of a drug, the manufacturer may be held liable for damages.
The primary duty of a pharmaceutical manufacturer is to physicians. As a result, the manufacturer usually will not be held liable for the injuries of a patient, provided it sufficiently informed the physician of all risks and side-effects  associated with a particular drug.  The only duty of the pharmaceutical company to the consumer is that the manufactured medication is reasonably safe when used as intended.

If a pharmaceutical manufacturer fails to provide the physician with adequate warnings of a drug's potential dangers, the case is no longer a medical malpractice issue. Instead, it falls under product liability law. The drug is determined to be "unreasonably dangerous," and the manufacturer may be held liable for failure to provide proper warnings.

However, in most cases, the physician who prescribed the drug is deemed to be a "learned intermediary." Due to his or her professional medical knowledge and the fact that he or she has received adequate information from the drug manufacturer, the physician is considered to be in the best position to decide whether or not a specific drug or medical device is suitable for a patient. Consequently, it is the duty of the physician to advise the patient about the risks and potential side effects of a medication or medical device.

Proving Fault or Negligence

There are a number of legal theories that can be used to determine liability in medical malpractice cases.

Negligence: The majority of medical malpractice cases attempt to establish proof that the medical professional was negligent. In order to prove negligence, the injured patient must demonstrate:

That the medical professional had a duty to the patient (derived, for example, from the basic doctor-patient relationship) The standard of care A deviation from the standard of care on the part of the medical professional (which is a breach of the duty to the patient that has been established). This requires expert testimony. That the medical professional’s failure to meet the standard of care resulted in the patient’s injury The injury to the patient

Negligent Prescriptions and Medical Devices: Aside from negligence in treatment, a medical professional may be held liable for negligence in the prescription of a medication or medical device. This applies if an injury to the patient occurs because the medical professional ignored the instructions of the manufacturer, prescribed an incorrect medication, or prescribed the correct medication in an improper dosage.

There are times when the pharmaceutical manufacturer may be at fault if a drug caused injury to a patient, but this is the case only if there was a failure to warn of potential side effects or dangers associated with the drug. In most cases, the prescribing physician is considered a "learned intermediary." That is, because of his or her professional medical knowledge, and the fact that he or she has received adequate information from the manufacturer, as a physician, he or she is in the best position to decide whether or not a specific drug or medical device is suitable for a patient. Consequently, it is primarily the duty of the physician to advise the patient as to the risks and potential side effects of a medication or medical device.

Breach of Contract or Warranty: While it is relatively uncommon, doctors sometimes promise specific results from procedures or treatments. Failure to fulfill these promises may be grounds for an action for breach of contract or breach of warranty. This is more likely to occur in cosmetic surgery cases, where the plastic surgeon may promise a patient a certain result, and it can be clearly seen if that result is not obtained.

Informed Consent: While details vary by state, patients have a right to full disclosure of the facts concerning their condition, treatment, side-effects, and prognosis in clear language that is easily understood. It is only after this information has been presented that a patient can give informed consent. Failure on the part of a medical professional to obtain the informed consent of a patient with regard to a procedure or treatment is a type of medical negligence and can be grounds for legal action.

Problems of Proof: It should be noted that proving wrongdoing on the part of a health care professional is often quite difficult, and hiring an experienced attorney is the best way to ensure that your case is handled properly. One of the difficulties in establishing proof involves the hiring of a medical expert. This is a person who practices in the same field as the health care professional being charged with misconduct. The medical expert must testify as to how the defendant should have handled treatment, under applicable professional standards of care. Often medical professionals do not like testifying against each other.

Again, establishing medical malpractice is difficult because the medical professionals charged with misconduct are usually the ones who write the reports that form the basis of the case. They are usually the only ones present when the negligence happened. While they know what actually occurred, they may choose to describe the event in a manner not truly accurate to what truly happened. Additionally, some health care providers may present their reports in order to protect someone who is guilty of misconduct.

Despite these obstacles, the law provides certain protections to the plaintiffs. If a medical injury occurs and the patient does not know the precise cause of the injury, but the injury could not have occurred without negligence of the part of the medical professional, he or she may invoke a legal doctrine known as "res ipsa loquitur." This translates to "the thing speaks for itself." In legal terms, it means that the plaintiff only needs to prove that a particular result occurred and would not have occurred but for someone's negligence. If this doctrine is invoked successfully, the burdern of proof is shifted from plaintiff to defendant. That is, the plaintiff no longer needs to show how the defendant was negligent, but the defendant must now prove that he or she was not negligent. In order to successfully invoke this doctrine, a plaintiff has to show:

The actual cause of the injury cannot be established In normal circumstances, the injury would not occur without negligence on the part of someone The plaintiff did not cause his or her own injury Control of the instruments that caused the injury were exclusively in the hands of the defendant, or its employees or agents Only the instruments of the defendant could have caused the injury

Statute of Limitations

In medical malpractice cases, the statute of limitations refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice suit can be filed. If the statute of limitations expires before a malpractice suit is filed, the defendant's case can be dismissed for being untimely. It is the responsibiliy of the defendant to alert the court of a statute of limitations violation. The statute of limitations will vary from six months to four years depending upon the circumstances of the claim and the state's medical malpractice law.

Informed Consent

Informed consent is the process through which fully informed patients can participate in choices about their healthcare. It originates from the patient's legal and ethical right to direct what happens to her body and from the ethical duty of the physician to involve the patient in her health care.

Elements of informed consent:

The nature of the decision/procedure Reasonable alternatives to the proposed intervention The relevant risks, benefits, and uncertainties related to each alternative Assessment of patient understanding The acceptance of the intervention by the patient

In order for the patient's consent to be considered valid, he or she must be competent to make the decision and the consent must be voluntary. The doctor should make clear to the patient that he or she is participating in a decision, not merely signing a form. It is very important that the patient fully understands what will be happening.

Certificate of Merit

In order to file a certificate of merit, an individual will need to have an expert (usually another physician) review the relevant medical records and certify that the individual's health care provider strayed from accepted medical practices, resulting in an injury to the individual. The plaintiff's medical malpractice attorney will then file the certificate of merit, thereby confirming that the attorney has consulted with a medical expert and that the plaintiff's action has merit.

Standard of Care

The standard of care refers to how a similarly-qualified doctor would have provided treatment to a patient under the same or similar circumstances. The standard of care varies among different types of medical professionals. For example, OB/GYNs are held to a higher standard of care than general practitioners.

All content on Accidents.com is for informational purposes only and is NOT intended as legal or medical advice. Please seek advice from a professional on any related topics.

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