What is Medical Malpractice Law?

And what to do if you suspect medical malpractice

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on July 10, 2023 Featuring practical insights from contributing attorney Kristen L. Beightol

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We should be able to trust our medical professionals to take care of us when we are sick or injured. Most of the time, we can. But unfortunately, healthcare providers sometimes make mistakes that harm individuals.

When they do, the law provides a potential route for financial recovery: medical malpractice lawsuits.

The Basic Elements of a Medical Malpractice Claim

If you were injured by a health care professional’s negligence, you might have a medical malpractice cause of action. Medical malpractice claims vary by state law but generally occur when medical professionals don’t perform their medical duties under the appropriate standard of care.

Kristen L. Beightol, a medical malpractice attorney at Edwards Beightol in Raleigh, North Carolina, explains that the elements of a medical malpractice claim are essentially the same in any state: “You need to prove that something was done negligently, that there are damages, and that there is a causal tie between the negligence and the damages.”

Though the elements are the same, “each state has particular parameters for what you need to prove those things. For instance, among other requirements, in North Carolina, a medical expert anticipated to qualify under North Carolina’s specific parameters must review the medical care and all medical records related to the alleged negligence pre-suit and agree to testify that the care did not comply with the standard of care. Other states have different requirements. For instance, some states require affidavits. State requirements are very specific, and you must follow them in order to prevent dismissal of the action.”

The elements of a medical malpractice case can be referred to as the four Ds: duty, dereliction, direct cause, and damages.

You need to prove that something was done negligently, that there are damages, and that there is a causal tie between the negligence and the damages… What falls above or below the standard of care all depends on what the medical expert says. So, medical negligence is not necessarily as simple as a mistake—it depends on what the expert would say about that particular mistake and whether it falls below the standard of care.

Kristen L. Beightol

Duty

A legal duty exists when a provider-patient relationship exists—which begins when you agree to receive medical treatment from a doctor and the doctor agrees to treat you.

Where this relationship exists, the provider must treat you in accordance with the standard of care expected of medical professionals. The standard of care is determined by how medical experts would have acted in similar circumstances.

“A medical expert must qualify under the state’s particular expert qualification requirements. It is not as simple as any doctor can testify against any other doctor or any nurse can testify against any other nurse,” says Beightol.

Furthermore, “the definition of standard of care may vary by state—is it what a reasonable healthcare provider with similar training would do under similar circumstances, the use of best judgment, or some other definition? This is another reason to get an attorney who knows the law of your state and medical malpractice litigation involved immediately to assess your case and give you direction on the steps required to file your claim timely and correctly.”

Dereliction (Breach of Duty)

Your provider committed a dereliction of duty, or a breach, if they didn’t treat you consistent with the medical standard of care.

“What falls above or below the standard of care all depends on what the medical expert says,” explains Beightol. “So, medical negligence is not necessarily as simple as a mistake—it depends on what the expert would say about that particular mistake and whether it falls below the standard of care.” A lot depends on the facts of your case and the expert’s assessment of the care at issue.

Direct Cause

In any negligence case, you will need to show that the injuries you suffered were a direct result of the other party’s negligent behavior.

Proving that injuries were caused by a physician can be very difficult in a medical malpractice suit. For example, there is usually some injury or illness already present—the medical condition for which you sought care in the first place.

To establish causation, plaintiffs often need more than one medical expert to assess their case. “In many situations, the expert who can explain what went wrong and why the standard of care wasn’t met isn’t the same as the expert who can explain the timing or cause of the injury,” says Beightol.

Damages

Finally, you must show that you suffered specific damages—in other words, actual harm. Generally speaking, there are two types of damage awards:

  • Economic damages such as medical bills and lost wages due to being unable to work.
  • Non-economic damages, such as emotional distress and mental or physical pain and suffering.

Some jurisdictions place caps on the amount of damages you can recover for non-economic losses. In some states, claimants can also be awarded punitive damages, which are intended to punish the healthcare provider and deter future medical malpractice.

It is vitally important to speak with an experienced medical malpractice attorney about your specific case to get real insight into the types of damages you may be able to recover.

Don’t just call one attorney. If a lawyer tells you they can’t help you, call five more. Medical malpractice is a very specialized field, and it depends on the opinions of experts. Where one attorney may see a case, another may not, and if you only call the lawyer who doesn’t, you may foreclose yourself from a claim… A lot of people are regularly getting declined, but not always because there isn’t a case. Often, it’s because of [extraneous factors] like the lawyer’s caseload or conflict.

Kristen L. Beightol

Examples of Medical Malpractice

If you’re thinking about pursuing a medical malpractice action, it can be helpful to know what common claims there are. At the same time, it’s important to remember that just because one of the following might have happened to you, you might not have a viable claim.

If you suspect that medical malpractice occurred—based on one of the following scenarios or something else—it’s imperative to consult with an attorney about your case as soon as possible.

Incorrect or Delayed Diagnosis

Sometimes doctors misinterpret symptoms and give patients incorrect diagnoses that can delay proper treatment. This usually doesn’t amount to medical malpractice unless the injured patient can show that the doctor gave a misdiagnosis where a competent doctor would not have.

You will also need to show that the delay of your proper diagnosis led to specific damages, such as increased medical bills or a prolonged absence from work.

Surgical Errors

A surgical error is a preventable mistake during surgery. Common surgical errors include operating on the wrong part of the body, cutting in the wrong spot, cutting a nerve ending, leaving something inside the body, or administering anesthesia incorrectly.

Surgery usually involves more than one medical provider, so you will need to determine which party or parties you want to include in your lawsuit.

A key part of your case will be proving that the mistake was preventable and a surgeon following reasonable professional standards of duty of care would not have made the mistake.

Medication

Medication errors can occur at many points during medical care.

A prescription can be written incorrectly either by your provider or the pharmacist filling the order. Someone can mishear or miswrite a dosage when prescribing at a hospital, leading to too much or too little pain medication. Medications can be mislabeled by a manufacturer or a pharmacy.

Sometimes your doctor or pharmacist can fail to warn you of drug interactions, side effects, or allergy risks. If your claim rests on medication mistakes, you will want to make a special effort to identify who in the chain of medical care can be held liable. Often, you can allege more than one person is responsible.

The true expense in medical malpractice cases is the experts: they’re required, and they don’t come cheap… [While many medical malpractice attorneys work on a contingency fee and front legal costs], how legal fees get covered depends on your contract with your lawyer…Your attorney should keep you posted and answer your questions about expenses at any time, but there’s no way to predict everything upfront.

How Much Does It Cost to Bring a Medical Malpractice Case?

“How legal fees get covered depends on your contract with your lawyer,” says Beightol. It’s impossible to say anything specific about how all lawyers charge, or about how any particular lawyer will charge.

That being said, many attorneys who do medical malpractice litigation work on what’s called a contingency fee agreement. With a contingency fee, you aren’t charged unless your claim is successful, in which case you owe the attorney a percentage of your recovery, says Beightol.

Additionally, medical malpractice lawyers will front the legal costs associated with pursuing a claim. “So, if an attorney charges a 40 percent contingency fee and you win your case, you will them owe that 40 percent fee plus reimbursement to cover what they’ve spent to pursue your claim up to that point. It’s two separate costs, not bundled together.”

The reason why law firms front legal costs in medical malpractice lawsuits is simple: most people wouldn’t be able to afford it otherwise.

“The true expense in medical malpractice cases is the experts: they’re required, and they don’t come cheap,” says Beightol. “Many charge hundreds of dollars per hour, and they put in a lot of hours—to review the case prior to filing; to tell you whether you have a case and what it is; to review the case before their deposition; to be deposed; to review the case again before trial; and then to testify at trial.”

Ultimately, “no one can possibly guess the cost to pursue any particular case ahead of time since it’s very dependent on what actually happens in the case—for example, what the other side does, how many motions need to be filed, how many experts you need, etc. Of course, your attorney should keep you posted and answer your questions about expenses at any time, but there’s no way to predict everything upfront,” Beightol adds.

Because of the financial stakes involved, “pursuing these cases is very expensive for law firms, which makes the decision to take them a very personal one for each law firm.”

How Long Do Medical Malpractice Cases Take?

Medical malpractice cases typically take longer than other types of personal injury cases, says Beightol.

“It’s a harder question to answer post-Covid, but there are cases out there where the medical care in question occurred in 2010 or 2011 and they still haven’t come to fruition. The timeframe depends on a lot of factors. For example, if minors are involved, it can take longer simply because there may be a longer time period for minors to file a case.”

Depending on the medical care involved and the types of healthcare providers who are needed to be experts, “these cases can take much longer—both to try and to get to trial in the first place.”

The Number One Piece of Advice: Consult a Medical Malpractice Lawyer Immediately

Beightol emphasizes three pieces of advice for anyone who is considering filing a medical malpractice lawsuit or who thinks that medical malpractice might have occurred:

  • Don’t make assumptions about your case. Believing there was negligence and proving negligence are very different things.
  • Don’t rely on unverified information online or out in the world about statutes of limitations.
  • Don’t wait to reach out to expert counsel. Medical malpractice cases take a long time to prepare. If you keep delaying, a lawyer may decline your case because they don’t have enough time to gather evidence or adequately prepare.

“There are so many problems that can be prevented and protections that can be put in place simply by getting an attorney involved early in the process. So many people choose to wait for one reason or another, but in the end, delaying can be detrimental to their claim,” says Beightol.

Additionally, “don’t just call one attorney. If a lawyer tells you they can’t help you, call five more,” Beightol adds. “Medical malpractice is a very specialized field, and it depends on the opinions of experts. Where one attorney may see a case, another may not, and if you only call the lawyer who doesn’t, you may foreclose yourself from a claim… A lot of people are regularly getting declined, but not always because there isn’t a case. Often, it’s because of [extraneous factors] like the lawyer’s caseload or conflict.”

So, if the first lawyer you contact gives a “no,” don’t stop there; reach out to a few more.

FAQs for a Medical Malpractice Attorney

Below are some common questions you might want to consider when meeting with an attorney for the first time.

What is the statute of limitations or time period on my claim?

“Only take advice on the statute of limitations from an attorney in your state who does medical malpractice litigation,” says Beightol. “Don’t make assumptions, and don’t wait—do it as soon as possible. If you choose to guess about the statute of limitations, you risk your case being filed too late and losing the opportunity to file a claim.”

Do I have a medical malpractice case?

The facts of every situation are unique. The laws governing medical malpractice are intricate and can vary widely from one state to another. To figure out if you have a case, Beightol says to not go at it alone, and to not make assumptions. You need to consult with an experienced attorney, who can bring in experts to evaluate your case.

How do I determine who is responsible for my injuries?

As in the previous question, the answer depends on your facts and medical records. Multiple healthcare providers could be liable for your injuries, but in order to determine that, you have to get a medical expert involved to assess your case.

What kind of compensation can I expect?

The answer here is highly fact-specific, and often can’t be known upfront. It depends on your state laws, your facts, and the path that the litigation takes. You need an experienced lawyer to navigate the legal process to have the best chance at a favorable outcome.

Finding the Right Attorney for Your Needs

It is important to approach the right type of medical malpractice attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory, and use the search box to find a lawyer based on your legal issue or location.

To help you get started, you may want to consider looking for a personal injury lawyer who specializes in medical malpractice.

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