An Overview on Medical Malpractice Law
Your legal options when your doctor makes a mistake
on December 15, 2016
Updated on June 29, 2022
We should be able to trust our medical professionals to take care of us when we are sick. Usually, we can. But, unfortunately, sometimes doctors or pharmacists make mistakes that hurt us. When they do, the law provides a way for us to recover: medical malpractice lawsuits.
Medical malpractice is the technical way of saying medical mistake—mistakes that affect your health and wellbeing. In extreme cases, even, medical malpractice can lead to death. If you believe you have experienced medical malpractice, you may want to consider talking to a lawyer.
If you were injured by a medical provider’s negligence, you might have a medical malpractice claim. Medical malpractice occurs when medical professionals don’t completely perform their medical duties. The basics of a medical malpractice case are sometimes referred to as the four Ds: duty, dereliction, direct cause and damages.
A legal duty exists when a provider-patient relationship exists—which begins when you agree to receive treatment from a doctor and the doctor agrees to treat you. Where this relationship exists, the provider must treat you in line with reasonable professional standards, which are measured by the local area.
Your provider committed a dereliction of duty, or a breach, if they didn’t treat you consistent with local standards. If you litigate your case, you may want to consider hiring an expert in the field who is qualified to testify to the professional standards in your area, as well as whether or not your provider’s actions were consistent with them.
In any negligence case, you will need to show that the injuries you suffered were a direct result of the other person’s unreasonable behavior. This can be difficult in a medical malpractice case because there’s usually already something wrong: That’s why you sought medical attention in the first place. You will need to prove your case by a preponderance of the evidence, which means it’s more likely than not that your injuries were a direct result of the provider’s actions.
Finally, you must show that you suffered specific damages—aka actual harm. Sometimes these damages are quantifiable, like lost wages from the inability to work or additional medical bills to treat injuries. Other times, your damages may be mental or physical pain and suffering. Some jurisdictions have placed caps on the amount you can be compensated for non-monetary losses.
Common Types of Medical Malpractice
If you are evaluating whether you have a claim, it can be helpful to know what common claims are. It’s important to remember that just because one of the following might have happened to you, you might not have a claim. You may find it beneficial to consult with a lawyer about whether the mistakes in your treatment rise to the level of medical malpractice.
Incorrect or delayed diagnosis
Sometimes doctors misinterpret symptoms and give patients incorrect diagnoses which can delay proper treatment. This usually doesn’t amount to medical malpractice unless you can show that your doctor gave you the wrong diagnosis 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.
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 would not have made the mistake.
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 at the 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.
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 on my claim?
- Do I have a medical malpractice case?
- What kind of settlement can I expect?
- Is my claim subject to damages caps?
- How do I determine who is responsible for my injuries?
Finding the Right Attorney for Your Needs
It is important to approach the right type of 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.
Why Should I Talk to a Lawyer?
Medical malpractice cases involve a lot of potentially liable parties and technical documents and claims. A lawyer will be able to help you get your charts and records, and they will have relationships with experts who can help your case. If you’re interested in settling your case, your lawyer can negotiate the best arrangement.
A lawyer will further be able to anticipate potential problems with your case and advise you on how to approach them. They will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.
Why Super Lawyers?
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. As Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public. You can learn more about the selection process here.