You expect to be taken care of when you receive treatment from medical professionals. When things do not turn out the way you expect, you will wonder if the outcome was the result of ordinary and expected medical risks and side effects or medical malpractice.
This distinction decides who bears the financial responsibility for further treatment. If the negative outcome was the result of medical malpractice, the medical professionals and their medical malpractice insurers will be responsible for the damages that you suffer. In cases where the medical malpractice results in wrongful death, these damages could be substantial.
Here is some medical malpractice information to help you to navigate this area of the law:
What Is Medical Malpractice?
One of the key issues that comes up when an injured person seeks medical malpractice information is the definition of medical malpractice. Medical malpractice occurs when a medical professional acts negligently when providing medical treatment.
Medical malpractice is not a separate area of the law, but is an application of negligence to medical providers. As such, a medical malpractice attorney is a personal injury attorney who focuses on lawsuits and insurance claims against medical providers.
Along with auto accidents, premises liability, product liability, and wrongful death claims, medical malpractice claims are among the five most common grounds for filing a personal injury claim. As a result, personal injury attorneys are often invaluable sources of medical malpractice information.
As a form of negligence, medical malpractice has four elements:
- Duty of care: To establish medical malpractice, the injured person must be a patient of the medical provider. This issue can come up in a couple of circumstances. First, if a person purports to be a doctor, but is not, that person probably cannot commit medical malpractice. Instead, that person would be liable under ordinary negligence and civil fraud. Second, in an emergency, a doctor might not have time to gather the information necessary for a doctor-patient relationship. Thus, if you have chest pains on an airplane and ask if there is a “doctor on board,” the dermatologist or dentist who comes to your aid might not be liable for medical malpractice if things go badly, although ordinary negligence might still apply.
- Breach of duty: Once a duty of care if established, negligence must be proven. That negligence includes any act or omission that failed to meet the standard of medical care that is reasonable under the circumstances.
- Causation: A negligent act only creates liability if it causes harm. To prove causation, the negligent act or omission must be both the “cause in fact” and the “proximate cause” of the harm. “Cause in fact” means that the act was a step in the chain of events that caused the harm. “Proximate cause” means that the harm was a foreseeable outcome of the act or omission.
- Damage: Medical malpractice only occurs when the patient suffers some damages. As discussed in greater detail below, the definition of damages is broad and can include pain and suffering, shortened lifespan, and expenses related to follow up treatment or a second opinion.
Who Can Commit Medical Malpractice?
Medical malpractice can be committed by any medical provider. This clearly includes doctors. However, according to the medical malpractice information provided by most malpractice lawyers, medical malpractice can also be committed by others responsible for providing medical care including:
- Nurses, nursing assistants, and nursing aides.
- Anesthesiologists, phlebotomists, radiologists, medical laboratories, and pharmacies.
- Physical therapists (in most states).
- Corporations, like hospitals, nursing homes, and medical clinics.
- Practice groups, like medical and dental practices.
Generally speaking, medical malpractice applies to anyone involved in providing medical treatment, regardless of their exact role. One test used to determine if someone should be held to the standards of a medical professional in a medical malpractice lawsuit is whether the person provided medical care or advice, or acted in a role that required the skill and judgment of a medical professional.
As a result, employees and staff that perform work other than medical services would only be liable under ordinary negligence. For example, a custodian, medical biller, receptionist, scheduler, administrator, or medical transcriber probably cannot be sued for errors under a theory of medical malpractice because they do not provide medical services, even when they work for a medical provider.
Can Hospice Care Facilities Commit Medical Malpractice?
While it might seem counter-intuitive since a patient must have a terminal condition to enter a hospice care facility, hospices can be liable for medical malpractice according to most sources of medical malpractice information. This can occur in a few ways:
- Drug mix-ups: While hospices do not provide treatment to extend life, they do offer palliative care such as pain medications. If pain medication or other palliative drugs are not administered properly, a patient’s life can be shortened. This would provide the basis of medical malpractice.
- Improper training: If a hospice enacts improper policies or provides sub-standard training to its employees, it would be responsible for any harm that results. If those policies and training were directed to medical care, a lawsuit for medical malpractice might be the route for compensating for that harm.
- Medical error: Medical mistakes like errors in monitoring, diagnosing, and treating patients could qualify as medical malpractice even though patients have a terminal prognosis. For example, the family of a person with terminal cancer who dies from COVID-19 while in a hospice might sue the hospice for medical malpractice and wrongful death if the hospice took no steps to prevent spread of the disease.
What Acts and Omissions Can Constitute Medical Malpractice?
One of the most important pieces of medical malpractice information is the type of error that rises to the level of malpractice. Generally, any decision or action that fails to meet the standard of reasonable medical care can trigger a medical malpractice lawsuit. Some examples of such actions include:
- Diagnosis errors: When a medical professional, such as a medical lab, radiologist, or doctor, commits an unreasonable mistake when diagnosing a medical condition, they might have committed medical malpractice. For example, if a radiologist reading a mammogram misses an obvious tumor, the radiologist might be liable for medical malpractice.
- Treatment error: If medical treatment fails to meet the standard for reasonable treatment under the circumstances, it can constitute medical malpractice. Some typical cases include operating on the wrong limb, prescribing medication for a condition the patient does not have, and leaving a surgical instrument inside a patient.
- Failure to treat: Failure to treat occurs when a health care professional made a correct diagnosis but did not prescribe treatment or prescribed inadequate treatment. If, for example, an accident victim’s doctor fails to recommend corrective jaw surgery after viewing x-rays and, as a result, the patient has chronic jaw and tooth pain, the patient should seek out additional medical malpractice information for a possible lawsuit.
- Communication error: Doctors have a duty to discuss a patient’s health and treatment options openly. If a doctor or other medical provider fails to present a patient with every treatment option, or fails to thoroughly explain the patient’s health conditions, the patient might be able to sue for medical malpractice.
- Birth injuries: A subset of treatment errors occurs when a medical provider injures a baby during pregnancy or delivery. Specifically, if a baby suffers an injury and the cause can be traced back to treatment the mother received, the medical provider may have committed medical malpractice.
What if I Do Not Discover the Error Until Later?
Sometimes, medical malpractice information about your case might not come to light until years after treatment. For example, an error in prescribing a drug for eye care might not become apparent for several years as you slowly lose your eyesight.
Even when you are aware of your injury, you might not connect your injury to your treatment until years later. For example, you might have persistent pain in your surgically repaired knee, but might not find out that your pain comes from a sponge left in the knee until you seek a second opinion years later.
You may have heard the term “statute of limitations.” A statute of limitations sets a time limit on when you can file a lawsuit. In the case of medical malpractice claims, the statute of limitations may be anywhere from one to ten years, depending on your state’s laws.
Because many patients require expert advice to connect their injuries to an act of medical malpractice, many states have adopted a few mitigating rules to soften the impact of the statute of limitations:
- Discovery: Many states begin the statute of limitations period at the time the patient discovers or reasonably should have discovered, the act or omission that constituted medical malpractice. For example, if an oral surgery patient is in recovery and rehabilitation for ten months, and only then discovers that the surgery was botched and the patient has suffered significant nerve damage as a result of a surgical error, the statute of limitations begins on the day of discovery instead of the day of the surgery.
- Completion of treatment: Many states delay the start of the statutory time period until the patient has ended treatment for the condition. There are a few reasons for this. First, the patient would not know whether the condition or injury had been properly treated until treatment had been completed. Second, the patient might not discover any acts of negligence until the treatment has ended. Third, a patient would probably not seek a second opinion that might uncover any medical malpractice information until after ending treatment.
- Childhood injuries: As a matter of fairness, the statute of limitations is typically tolled, or suspended, until the injured patient is 18 years old. This allows a patient who was injured as a child to decide for themselves whether to file a lawsuit, even if their parents choose to forego filing a lawsuit. Keep in mind, however, that this tolling does not provide a second bite at the apple. If the parents sue for medical malpractice and either lose or settle, the child does not get a second chance after turning 18.
How Do Claims Usually Proceed and How Long Do They Take?
When a patient suffers medical malpractice, the patient will typically seek a lawyer and a second opinion. Both of these consultations are important. The second opinion will provide the medical and scientific basis for determining whether the medical care met the standard of care expected from the medical provider.
The legal consultation will provide the injured person with general medical malpractice information and determine whether the law supports a claim of medical malpractice. During this consultation, a lawyer can provide advice about how the law applies and provide a road map for how the claim will proceed. In a typical case:
- The lawyer writes to the medical provider to place it on notice of the claim.
- The medical provider alerts its malpractice insurance agent and provides the insurer with all medical malpractice information it has for the case.
- The insurer opens a claim file and contacts the lawyer.
- Both the insurer and lawyer investigate the claim and begin negotiating a settlement.
- The case reaches a negotiated settlement or, if no settlement can be negotiated, the lawyer files a lawsuit.
In many states, a lawyer must obtain a case review at the time of filing or within a prescribed time period after filing. The purpose of the case review is to eliminate frivolous cases. The case review typically involves a medical review board established under the state’s law.
What Damages Can Be Expected?
Damages from a medical malpractice case typically fall into a few categories:
- Medical treatment: If the medical error resulted in a condition or injury that required further treatment, the patient can receive compensation for any medical costs incurred. For example, if the patient requires emergency dental service after a dentist botches a simple tooth extraction, the costs of that emergency service would be included.
- Lost wages: When a patient is rendered unable to work by the medical malpractice, the patient would be able to claim lost wages among the damages.
- Non-economic damages: Also called “pain and suffering” damages, these damages account for the mental, emotional, and physical toll on the patient that do not have direct costs. For example, if a patient suffers depression as a result of the malpractice, the patient would receive compensation for the cost of mental health treatment but also for having suffered from depression.
- Punitive damages: Punitive damages are assessed in rare cases to punish the medical provider for extremely egregious behavior or to discourage a pattern of repeated behavior.
What if the Patient Dies?
If a patient dies, the case proceeds in substantially the same way. However, in calculating damages, the family’s wrongful death lawyer would submit evidence of the person’s lifetime earning capacity that was lost as a result of their premature death. This would be added to any expenses incurred, such as medical bills and funeral costs.
Who Is Responsible for Paying Damages?
If a medical provider has malpractice insurance, the malpractice insurer will be responsible for the damages up to the policy limits. If the damages exceed the policy limit, the medical provider will be responsible for the shortfall.
Medical malpractice is rare. However, it can happen anytime, from a simple orthodontic exam to the most complicated surgery. When it does, seek a second opinion and a legal consultation so you can preserve your medical malpractice claim.