Defining Medical Malpractice: How to Take Legal Action

The American Bar Association says, “Medical malpractice is negligence committed by a professional health care provider—a doctor, nurse, dentist, technician, hospital or hospital worker—whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients.” For example, if a physician gives a person a treatment that could harm them, that could be considered medical malpractice. It is a form of professional negligence that can be tried in a court of law.

This article discusses examples of medical malpractice, who’s responsible, and how to initiate a medical malpractice case if it happens to you.

Examples of Medical Malpractice

Several different scenarios can be considered examples of medical malpractice. They include:

• Misdiagnosing or failing to diagnose something with a specific ailment
• Ignoring and misreading lab results that could negatively affect someone’s health
• Performing surgery unnecessarily
• Surgical errors or wrong-site surgeries
• Prescribing the wrong medication or dose
• Failing to perform proper aftercare or follow-up with patients
• Discharging a patient before they should go home
• Failing to take an appropriate patient history or disregarding a patient’s health history
• Failing to order the appropriate tests needed to diagnose a patient accurately
• Failing to recognize symptoms as they present themselves

When a healthcare provider does any of these things, and it leads to injury, or worse, for a patient, it is considered medical malpractice.

Legal Jargon and Meanings

Terms used in medical malpractice claims can include:

• Negligence: The failure to behave with the same level of care that a reasonable person would give in the same circumstances.
• Statute of limitations: This is the length of time that can pass before a person can no longer file a claim. For medical malpractice, it is typically two to three years in the United States.
• Tried in court: A situation in which a medical provider will be charged and proven innocent or guilty by a jury.
• Plaintiffs: Patients filing a medical malpractice case.
• Defendants: The medical provider(s) involved in the malpractice case.
• Discovery: A phase before the trial where each party learns more about the case and is given information from opposite sides.

Responsible Parties in Medical Lawsuits

Providers, such as medical personnel and facilities, claimed to be responsible for medical malpractice are considered the defendants. For example, a doctor and a nurse considered responsible for negligence toward a patient can both be charged with medical malpractice. The primary provider is typically sued for negligence, not the entire medical team. In the case of patient vs. provider, the patient would be the plaintiff, and the provider would be the defendant.

In a medical malpractice suit, the plaintiff is the party who claims they experienced injury due to negligence or are the family members of the patient who died.

How to Find Out if a Provider Has Malpractice Complaints

Patients looking for new healthcare providers can check their malpractice status by going to the DocInfo site and the Federation of State Medical Boards. There, you can search for any malpractice suits or complaints that may be lodged against a specific provider. You may also be able to do a quick online search by typing the healthcare provider’s full name and “medical malpractice suit” into the search bar. You can also check the state licensing board. However, since medical malpractice suits aren’t typically shared across different states, it’s essential to check through licensing boards across all states to find out.

Medical Malpractice Qualifications

The laws are clearly defined, and certain criteria must be met for a medical act to qualify as malpractice, including:

• Legal duty to treat the patient: A healthcare provider has a legal and just duty to provide care for the patient and their current health problems.
• Violation of standard of care: A healthcare provider did not offer the appropriate medical care as per the standard.
• Injury or death caused by negligence: A person was injured or lost their life due to the healthcare provider’s negligent actions.
• Significant damages occurred because of the injury: There is enough damage to justify a case, and the financial recovery from the suit will be greater than the cost of pursuing the lawsuit.

If a patient can prove these four characteristics accurately describe their situation and are within the statute of limitations, they can file a malpractice claim.

What Part of Medical Malpractice Is the Most Difficult to Prove?

Proving that a healthcare provider acted intentionally when breaching the standard of care is the hardest to prove because accidents and poor outcomes can happen in the medical field. That does not mean that they are automatically medical malpractice.

How to Initiate a Medical Malpractice Case

When a patient wants to initiate a medical malpractice suit, they must take important steps in the proper order. That way, they can help build a strong case for themselves.

Since healthcare providers will be doing everything to defend themselves against medical malpractice, it is essential to get everything in order before launching a case.

The steps to follow are:

• Finding a lawyer: You will want to hire a lawyer with experience in medical malpractice.
• Gathering evidence: Together with your lawyer, you will need to gather as much hard evidence as possible to prove that the healthcare provider acted with negligence and it led to significant injury or death. This could include gathering health records, imaging and other test results, and any other documentation pertaining to your experience.
• Reviewing documents with an expert: After you have all the documents you need, an expert will likely need to review them to ensure you have all the information you need to file a suit against a healthcare provider.

After that, discovery occurs, in which both parties share information about the witnesses and evidence.

Gathering Information

To make the best case possible, you will want to gather as much information and records as possible. They may include:

• Medical records, including office visits, test results, surgery and hospital discharge reports and summaries, etc.
• Financial records of everything you spent and will have to pay because of the injury caused
• Witnesses that can attest to your experience

Medical Malpractice Compensation

The compensation provided following a medical malpractice case will vary significantly depending on the patient’s experience and health outcome following the negligent event.

They will also vary depending on the state where a person files the case. According to research published in the journal JAMA Internal Medicine, the average payout patients in the United States receive is roughly $329,565.

There are several determining factors associated with the different payouts, including:

• The severity of the injury
• The type of negligence
• The impact the injury has had on the patient physically, psychologically, and financially
• How much medical care a person will need going forward
• The amount of evidence presented during the case
• How strong the evidence is in proving the medical malpractice occurred
• Any testimony provided by medical experts in the field
• Laws and regulations surrounding medical malpractice in your area
• The impact of the injury on the patient’s loved ones
• Whether or not the patient has/had insurance coverage

Summary

Medical malpractice is a form of professional negligence that can lead to patient injury or death. Because this type of negligence can lead to severe outcomes, it is considered a serious offense in the eyes of the law in the United States.

People who believe they experienced negligence (or their families in the case of wrongful death) can file a medical malpractice claim against the healthcare providers and facilities they find at fault as a way to cover damages and cover future costs of care due. Still, it can be challenging to prove in a court of law in some cases.

Because of that, gathering the correct information and finding the right legal team are the best ways to build a strong case against a healthcare provider who acted in a negligent manner during your care.

Verywell Health uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.

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4. American Board of Professional Liability Attorneys. What is medical malpractice?
5. Forbes. Medical malpractice statute of limitations by state.
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7. Schaffer AC, Jena AB, Seabury SA, Singh H, Chalasani V, Kachalia A. Rates and characteristics of paid malpractice claims among US physicians by specialty, 1992-2014. JAMA Intern Med. 2017;177(5):710-718. doi:10.1001/jamainternmed.2017.0311
8. Hampton and King Attorneys at Law. Medical malpractice payouts by state.

By Angelica Bottaro
Bottaro has a Bachelor of Science in Psychology and an Advanced Diploma in Journalism. She is based in Canada.

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