Medical Malpractice

Medical malpractice is a term that refers to any medical mistake made by a doctor or other medical professional that leads to personal injury or wrongful death. Medical malpractice can be the result of negligence on the part of the doctor, nurse, hospital, or other medical staff.

surgeons in an operating room
The laws regarding medical malpractice differ from state to state, but usually, it is necessary to have a physician testify that another medical professional is guilty of misconduct. 

Medical negligence occurs when medical personnel fail to perform their duties in a way that meet the standards of conduct for the medical profession. A physician who prescribes the wrong medication can be found negligent because all doctors are expected to possess the knowledge needed to correctly prescribe medication.

What Are Examples of Common Medical Malpractice Cases?

There are many types of medical malpractice cases that can be brought against physicians, hospitals, and medical personnel. These cases may involve hospital errors, failure to diagnose, surgical errors, and more. If you or a loved one has been injured as a result of medical malpractice, it is important to contact an attorney who can protect your rights and help you to obtain compensation. The following are examples of medical malpractice.

Anesthesia Errors

The administration of anesthesia requires the use of sensitive techniques. Improper use of the anesthetic agents, oxygen, and other substances and equipment can result in serious physical impairment or death. It is also important to note that before anesthesia is administered, the acting anesthesiologist must check to make sure that the patient does not have any conditions that may cause complications. A failure to thoroughly check for these conditions or proceeding despite them can lead to serious injury, and is a common basis for medical malpractice cases.

Birth Injury

The birth of a child is supposed to be a happy occasion, but when hospital errors result in a birth injury, joy quickly turns to despair as the family learns to deal with the tragedy. Medical malpractice claims are often filed when a birth injury occurs. Birth injuries can include Erb's palsy, or brain damage resulting in conditions such as cerebral palsy.

Cerebral Palsy

A medical malpractice case can be brought against physicians and other medical professionals when their negligence causes an injury resulting in cerebral palsy (a form of brain damage). Brain damage can occur due to a failure to diagnose metabolic conditions, Rh incompatibility, oxygen shortage, and other problems.

Burn Therapy

Serious burns must be adequately treated in order to prevent further injury, loss of tissue, or death. If a health care provider does not properly treat a burn injury, he or she can be held liable in a medical malpractice lawsuit.

Child Delivery

Medical professionals assisting with pregnancy and childbirth may face charges of medical malpractice if they fail to recognize abnormalities including Rh-incompatibility, large baby syndrome, and malformations. Similarly, a medical professional can be held liable if he or she is negligent during labor and delivery and causes a birth injury such as cerebral palsy or Erb's palsy. If your child has been injured due to the negligence of a medical professional, you may be entitled to compensation. 

Defective Drugs or Products

An individual suffering from injuries caused by a defective drug or defective medical product may be entitled to compensation from the hospital, doctor, manufacturer, or distributor. If you were not warned about the dangers of the product, or if the product did not meet safety standards and caused an injury, you may be eligible to file a medical malpractice lawsuit.

Dental Malpractice

If you or a loved on has experienced an injury or difficulty during a checkup, cleaning, or root canal procedure, you may be eligible for a dental malpractice claim.


Medical personnel that perform procedures or prescribe drugs that are unapproved by reputable medical organizations are at risk for medical malpractice.

Failure to Diagnose

When a medical professional makes an incorrect diagnosis after being given adequate information about a patient, and injuries result, the patient may be eligible to file a medical malpractice lawsuit. This can occur when a medical professional fails to diagnose a disease, damage to bone structure, illnesses caused by exposure to toxic chemicals, and numerous other conditions.

Breast Cancer

A medical malpractice case can be brought against physicians for failing to diagnose breast cancer in a timely manner. In 1999, these cases accounted for 40 percent of all medical malpractice claims. The top three reasons doctors fail to diagnose breast cancer are that they rely too heavily on a patient's age as a predictor, they rely too heavily on negative mammogram results (even if the patient feels a lump), or they do not believe a patient when she reports symptoms.

Lung Cancer

Medical malpractice claims can be brought against physicians for failing to diagnose lung cancer. In one case in Massachusetts, a patient successfully sued a physician for failing to disclose a lung cancer diagnosis after chest x-rays and a CT scan were performed.

Improper Procedure

Medical professionals can make simple mistakes that can be costly to the patient. Examples include delays in treatment or failure to obtain proper consent for treatment. Victims of such carelessness should contact a medical malpractice attorney immediately after they suspect negligence has occurred so the responsible party can be held accountable for the medical malpractice lawsuit.

Medication Errors

Issuing insufficient amounts of medication or improper instructions for its usage can be detrimental to a patient's health. A medical malpractice case can be brought against physicians or pharmacists for medication errors when handwritten prescriptions are illegible, when abbreviations are used on the prescription, when the patient is given the wrong dosage, and when two drugs with similar spellings are confused. It is estimated that medication errors occur at a rate of 30,000 to 180,000 per year.

Nursing Home Abuse

A medical malpractice case can be brought against nursing home staff if they neglect or abuse elderly patients who are under their care.  Elder abuse can include physical, psychological, emotional, and financial abuse, as well as neglect.

Surgical Errors

All surgical procedures have risks, even when performed correctly. If evaluation, preparation, any part of the surgical procedure, or postoperative care is inadequate, the procedure may fail or serious side effects may occur. A medical malpractice attorney with experience handling these complex cases can help those who have been injured as a result of surgical errors determine if they have a valid medical malpractice lawsuit.

Wrongful Death

Medical malpractice claims can be brought against physicians for wrongful death when a patient dies as a result of medical malpractice or negligence. Wrongful death lawsuits are filed in an attempt to defray medical costs for the family of the victim. In addition, compensation may be awarded for lost wages, pain and suffering, and loss of companionship.

A medical malpractice attorney familiar with medical malpractice laws and filing a medical malpractice claim may be able to help victims obtain medical malpractice settlements. If you or a loved one have fallen victim to medical malpractice, choosing an attorney may be the most critical decision you make.

How a Medical Negligence Lawyer Can Help Your Case

Once the decision has been made to pursue a medical malpractice claim, it is essential that you find legal representation. 

The laws regarding medical malpractice differ from state to state, but usually, it is necessary to have a physician testify that another medical professional is guilty of misconduct. These expert witnesses - and medical malpractice litigation in general - are typically quite expensive.

To win medical malpractice settlements, a medical malpractice law firm needs to have the resources to pay for the development of technical evidence. For this reason, a medical malpractice attorney generally will not take on a medical malpractice claim unless it involves serious or permanent injury.

How to Choose a Medical Malpractice Attorney

Assuming you have a serious or permanent injury that resulted from the misconduct of a medical professional, there are some basic guidelines to consider when choosing a medical malpractice attorney.

Find a medical malpractice attorney who makes winning medical malpractice settlements a significant part of his or her practice. Some states even have special certifications for attorneys who focus on medical malpractice laws. Your medical malpractice claim is too important to be conducted by someone who does not know medical malpractice laws inside and out.

Select an attorney who has experience negotiating large medical malpractice settlements with medical providers' insurance companies. Negotiating requires industry-specific knowledge; lawyers who work in the medical malpractice field know what certain cases are worth and won't settle for inadequate compensation.

Choose an attorney with experience taking medical malpractice claims to trial. Although some lawsuits may be settled out of court, there is a distinct possibility that your medical malpractice claim may go to trial. This is due to the heavy burden of proof on the medical malpractice plaintiff. An experienced trial attorney gives you the best chance to succeed.

Pick an attorney with whom you are comfortable working. It is a good idea to ask for some references before finalizing your decision. Make sure the terms of your contract are explained to you before signing it. Since the costs of litigating a medical malpractice claim can be very high, it is important to understand the difference between a contingent fee taken from net recovery and one taken from the gross recovery.

When Must a Medical Malpractice Suit be Filed?

The statute of limitations will vary among claims and each state's medical malpractice law - the limit may range from six months to four years. In addition, in some states, the statute of limitations for a medical malpractice suit may be delayed for an injured child until the child reaches a specific age.

When Does Time Begin?

The period of time during which a medical malpractice suit must be filed usually begins with the date of harm. For instance, a person who suffers injuries as a result of medical malpractice has a certain time period - starting from the date of the injury - to file a medical malpractice suit against the other party.

There are instances, however, in which an injury is not discovered for months or years after it occurs. In these cases, under medical malpractice law, the statute of limitations is applied when the injury is discovered or when the injury should have been discovered.

For example, a patient who suffers an injury as a result of a medical instrument being left inside the body during surgery will have a certain period of time starting from the date the mistake was discovered. If the patient begins to experience pain a month later, seeks treatment, and the mistake is found, the statute of limitations will apply starting from the date the mistake was discovered. If the patient delays treatment for months after having the pain, the starting date of the statute of limitations will most likely apply to the point at which the patient first began having the pain, when the mistake should have been discovered.

Proving Fault

A medical malpractice lawsuit can be a draining process for the victim, even with the help of a qualified medical malpractice attorney. Medical malpractice cases can be time consuming and expensive. Because of this, it is important to make sure that the medical malpractice case is strong and that there is a good chance for recovery of damages.

It can be difficult to determine the validity of a medical malpractice lawsuit without the aid of a medical malpractice attorney, but generally small claims malpractice cases (where the money expected to be recovered is significantly less than the amount spent during the lawsuit) are not justifiable to the client or medical malpractice attorney.

Medical Malpractice Liability

In the past, only physicians could be held liable for medical malpractice cases - the law treated physicians as independent contractors regardless of whether they were on the staff of a hospital. Now, however, the courts consider the relationship between physicians, hospitals, and HMOs as an employer/employee situation in which the hospital or HMO has some control over the physician's actions. If a hospital or HMO limits the actions of a doctor and a patient is injured as a result, the hospital or HMO can be held liable in a medical malpractice lawsuit.

Elements of a Medical Malpractice Lawsuit

Duty to the Patient

There are several key elements to medical malpractice cases. The first element for the medical malpractice attorney to determine is whether the physician had a "duty to the patient." In other words, did the doctor agree to treat the patient? If the doctor did agree, then a certain degree of competence and skill is expected. In addition, there are instances where the physician may have a duty to persons other than the patient. For example, a patient may suffer an epileptic seizure that leads to an auto accident. The physician may be held liable for the injuries of other parties in a medical malpractice lawsuit because he or she failed to diagnose the patient's condition.

Expert Testimony

The second element of a medical malpractice lawsuit requires the presentation of expert testimony that defines what the acceptable standard of care is and explains how the physician did not administer the proper care.


The third element of medical malpractice cases is known as causation; the medical malpractice attorney or victim must prove that the physician's actions caused harm to the patient. This can be determined by asking if the patient would have been harmed in the absence of the doctor's actions. For example, would a surgical patient have been harmed if the surgeon had not left a medical instrument in the patient's body? If the answer is no, then the surgeon's actions caused harm to the patient, and thus fit the requirements for causation.

Physician Medical Malpractice Records

In the past, physician medical malpractice records were not made available to the public. Only state medical boards, hospitals, and other credentialing organizations were allowed to view them. However, in the face of public demand, some states are enacting legislation that allows patients to discover whether or not their physician has been the subject of a medical malpractice lawsuit. These records can be made available through each state's board of medicine, insurance claims records, and the National Practitioners Data Bank.


Every year, thousands of medical malpractice lawsuits are filed due to medical negligence. Medical malpractice can result in serious personal injury and/or wrongful death, and a medical malpractice lawyer can help those seeking compensation for their losses. According to the National Academy of Sciences, approximately 98,000 Americans die from "medical mistakes" each year.

Types of Damages

In a medical malpractice case, the plaintiff can file for actual damages and, in certain cases, punitive damages.

  • Actual damages: refers to compensation awarded to cover the cost of additional treatment, loss of wages, loss of future earnings, and pain and suffering resulting from medical negligence.
  • Punitive damages: refers to compensation awarded when medical malpractice is the result of reckless or willful behavior on the part of the physician.

Limits on Recoveries for Medical Malpractice Lawsuits

Some states have imposed laws that cap or limit the amount of compensation an individual can recover in medical malpractice lawsuits. However, many of these laws are being challenged in several state Supreme Courts, including Illinois and Ohio. Therefore, it is important to remember that although there may be a cap in your state, it may not hold up in court. A medical malpractice lawyer can determine if you have a valid lawsuit and are entitled compensation due to medical negligence.

Consult an Attorney for More Information

If you or a loved one has been a victim of medical malpractice, you may want to contact a personal injury lawyer for more information.

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