Types of Medical Malpractice

A guide and explanation of the types of medical malpractice and ways in which a physician can breach the standard of care, and the legal consequences of these actions.

Failed Diagnosis or Treatment · Sub-Standard Care · Anesthetic Errors · Surgical or Medical Errors · Gross Negligence · Informed Consent · Breaches of Doctor-Patient Confidentiality

Failed Diagnosis or Treatment

If a doctor fails to correctly diagnose or treat an illness or medical condition, there may be grounds for a medical malpractice lawsuit. One of the most important factors in determining if the case is "actionable" (legitimate grounds for a lawsuit) is if an injury results. If no losses or damages occur as a result of the erroneous diagnosis or treatment, the patient has not been harmed are there are no grounds for a medical malpractice lawsuit.

Determining the negligence of a doctor is based upon the standard of care. That asks the question, did the doctor act in accordance with the expected behavior of any doctor in the given situation? If a doctor fails to consider the actual cause of the patient’s symptoms or dismisses it without sufficient testing, that behavior may qualify as negligence. However, a misdiagnosis arising from proper and reasonable action and care on the part of the doctor is most likely not medical malpractice.

Actionable injury can result from a failed diagnosis in two ways, direct and indirect harm. When a doctor incorrectly diagnoses a patient’s ailment, and the prescribed treatment (for example, a prescription drug) causes direct harm to the patient, that patient likely has grounds for a medical malpractice lawsuit. If a doctor correctly diagnoses a disease but elects to use an unproven method of treatment that proves harmful and/or unsuccessful, where a conventional treatment would likely have worked, this may also be negligence. That is, a correct diagnosis followed by erroneous treatment is still considered malpractice.

Indirect harm occurs when the failure to correctly diagnose or take notice of symptoms results in a spreading or progression of the disease that could have been halted or delayed if the ailment been treated in a proper and timely manner. Establishing that timely treatment would result in a superior prognosis can be difficult to prove because a disease can spread considerably before its symptoms become apparent.

Sub-Standard Care

The standard of care is the basis on which negligence and fault are determined in medical malpractice lawsuits. It refers to the level of care, skill, and knowledge that is expected of all physicians in a particular field, in a particular region, acting in similar circumstances. Substandard care, treatment, and surgery occur when a doctor fails to meet this standard of care. It should be noted that the qualification of "region" is less important that it once was. National board exams and certifications have given rise to a more consistent standard of medical professionalism across the country.

There is a basic level of skill and knowledge that is expected of all licensed physicians. They should all be about to diagnose and treat basic injuries and illnesses; one does not need to be a heart specialist to administer CPR to an individual suffering from a heart attack. However, it should not be expected that all doctors would react to a heart attack with the same expertise that a heart specialist would. Similarly, a specialist with access to the most advanced and cutting edge tools would be held to a higher expectation than one that did not.

One of the most significant difficulties in suing a doctor for substandard care, treatment, or surgery is finding an expert witness. Physicians often refuse to testify against fellow physicians, and it is often a challenge to locate an unbiased, expert witness who will declare the doctor negligent or the care/treatment/surgery substandard.

Anesthetic Errors

Anesthetic errors are a serious form of medical malpractice. Many surgical patients undergo anesthesia in order to block the brain from the perception of pain and allow surgery to be relatively pain free. Since anesthesia is such a precise process, there is a great potential for error and a qualified anesthesiologist should be present to observe and avoid anesthesia error. Common causes of anesthetic error include:

-Overdose/Underdose

An overdose of anesthesia can cause organ failure, brain damage, and death. If a patient is given an insufficient amount of anesthesia, he or she may wake up in the middle of surgery, unable to notify the surgeon of his or her condition.

-Interactions between anesthesia and other drugs

If doctors fail to check the interaction between the anesthetics being used and drugs in the patient’s system, the effect can be harmful.

-Allergies to common anesthetics

Many people have allergies to anesthetics. It is the responsibility of the aesthetician to use chemicals that will not be dangerous to the patient.

-Failure to advise on food and water interactions

It is the doctor’s responsibility to inform the patient not to eat or drink within 24 hours of the surgery, as this may increase the potential for complications.

-Use of EKG or electrocardiogram

Sometimes an anesthesiologist uses an EKG to monitor a patient’s heart rate and adjusts the level of anesthesia based on the EKG reading. However, an EKG device is sensitive and many factors can interfere and cause an inaccurate EKG reading.

With an increasing number of surgeries being performed every year, anesthetic errors are becoming more and more frequent. Victims of anesthetic error are entitled to monetary compensation for their suffering.

Surgical or Medical Errors

One form of medical malpractice involves surgical errors. A surgical error occurs when a surgeon, surgical resident, or nurse makes a mistake that results in an injury to the patient. Surgical errors can occur in many situations. Examples include a patient mix-up or when a surgeon claims to be present during a surgery but in fact fails to be present during critical times. Medical errors related to surgery can include failure to inform the patient of risks associated with the procedure, failure to monitor the patient during and after surgery, performing the wrong surgery or surgery on the wrong area of the body, perforation or laceration of organs or blood vessels, leaving surgical instruments inside the body of the patient, failure to detect and treat internal bleeding, and post surgical infections.

Gross Negligence

When applied to medical malpractice cases, gross negligence is an action that is obviously an error, even to someone without any medical training. Examples of gross negligence include leaving a surgical instrument inside a patient's body cavity or amputating the wrong limb. In some states, establishing gross negligence as a cause of legal action does not require the testimony of an expert. Some courts allow medical malpractice claims to be based upon "res ipsa loquitur" ("the thing speaks for itself"). This means that negligence of the part of the defendant is assumed simply because the event occurred and there is no other way that it could have happened. If you are the victim of a grossly negligent action on the part of a medical professional, an experienced medical malpractice attorney can help you obtain justice.

Informed Consent

The need for informed consent is recognized by all states but to a varying extent. Informed consent means that the patient has the right to receive a full disclosure of the facts about his or her medical condition, the treatment options, risks associated with the treatments, and the prognosis.  In addition, this information must be presented in such a way that it can be understood by a layperson, in plain terms and in sufficient amounts, so that a patient is able to make an "informed" decision about his or her health care.

One the patient has received this information, any consent to being treated is considered "informed consent."  In order for a patient to successfully argue that treatment was carried out without informed consent, he or she must prove that treatment would not have been accepted, had he or she known of the potential risks or outcomes. It also must be shown that the consequences of the unauthorized treatment were harmful.  Failure on the part of the doctor to obtain informed consent for any non-emergency treatment can result in civil and/or criminal charges.  Establishing this can be difficult, but an experienced medical malpractice attorney can help you develop the best case possible.

Breaches of Doctor-Patient Confidentiality

One form of medical malpractice is the breach of doctor-patient confidentiality. The concept of doctor-patient confidentiality is based on trust. An individual seeking medical assistance should be able to do so without the fear that his or her doctor will disclose to any personal information, including details pertaining to his or her condition. Doctor-patient confidentiality covers not only information related to the doctor directly by the patient, but also any information the doctor has learned from his examination of the patient. This includes all medical records and all communications between the patient and doctor or other staff working for the doctor. In addition, doctor-patient confidentiality covers electronically stored medical records or personal information. It is the responsibility of the doctor and his or her practice to keep those records confidential, safe, and inaccessible to unauthorized parties.

Under doctor-patient confidentiality, a doctor cannot disclose any information about his or her patient without that patient’s consent. Nevertheless, there are exceptions to this rule. A breach in doctor-patient confidentiality can be made by certain authorized parties, such as state health officials (for example, in the case of communicable viral diseases), insurance companies, or in instances of child abuse. If a medical malpractice lawsuit is filed, whether for breach of doctor-patient confidentiality or other reasons, a subpoena will be issued by the medical malpractice lawyer for the patient’s medical records. A doctor is required by law to release medical records under such circumstances.

Doctor-patient confidentiality is applicable even after a doctor stops treating a patient. Lack of protection from disclosure of medical information to unauthorized parties is considered to be a breach of doctor-patient confidentiality and can be grounds for a medical malpractice lawsuit.

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