What is Medical Malpractice? by Brette Sember, J.D.

What is Medical Malpractice?

Medical malpractice is a serious problem. Find out what qualifies as medical malpractice and what you can expect if you have been harmed by something a health care provider has done.

by Brette Sember, J.D.
updated August 24, 2015 · 4 min read

Medical malpractice occurs when a patient is harmed by a doctor’s or other health care provider’s actions or is harmed by their failure to do something. When understanding what is medical malpractice, it is important to note that all medical mistakes are not malpractice. A mistake is only considered malpractice if there is negligence. The medical malpractice definition is that the health care provider did not follow the standard of care in the profession in that area. The mistake the health care provider made must actually result in harm to the patient. The question always asked in medical malpractice cases is whether a reasonably competent health care professional in the same situation would have made the same decision. If the answer is no, then there may be grounds for a medical malpractice lawsuit.

Malpractice can happen at any stage in treatment or in any type of medicine. Failing to diagnose a patient as having a heart attack, providing the wrong diagnosis to a sick patient thus delaying treatment, giving a patient someone else’s medication, operating on the wrong body part, or giving a baby an adult dose of a medication are all examples of medical malpractice.

Avoid Malpractice

Over 160,000 people die from medical malpractice each year in the United States. To keep this from happening to you, use only physicians who are board certified in their specialty. Get referrals from your primary care provider. Get second opinions for serious diagnoses or if you feel you have been incorrectly diagnosed. Ask questions about everything, including what medication you are being given and at what dose whether you are at home or in a hospital.

Do You Have a Case?

If you have been injured due to bad medical care you may wish to sue. To determine if yours is one of the viable medical malpractice cases that win settlements, you need to determine if your case meets the requirements set by your state. While these can differ, in general your health care provider must have failed to provide the minimum standard of care that is reasonable in a situation such as yours. The negligence must actually cause a personal injury to you and the injury must have had a serious impact on you such as pain and suffering, mistaken removal of a body part, or inability to work.

Malpractice is also possible if you did not give informed consent to the treatment. The health care provider must tell you about possible adverse outcomes, side effects, and expected results from the treatment and you must agree to undertake the treatment given those facts. If you were not advised about any of this, you may have a case as well. An example is if a doctor did not tell you he might have to remove your lung as part of a surgery. You couldn’t agree to this because you didn’t know it was a possibility, so if he removes the lung, and you can sue.

How to Find an Attorney

If you are interested in pursuing a personal injury case for medical malpractice, you will need a medical malpractice attorney. Your local bar association may have an attorney referral program you can access. If you have used another attorney in the past, ask him or her for a referral to a medical malpractice lawyer. You will want to work with someone who has a lot of experience handling this type of case. Set up consultations with several attorneys before choosing the one you feel most comfortable with. It is common for an attorney to take a percentage of your settlement or award as the fee and not to charge a fee if the case is lost.

What to Expect in a Malpractice Case

Every state has a medical malpractice statute of limitations, a time frame in which your case must be filed. However there is usually an exception called the discovery rule. For example, if you found out several years later that your doctor did a bypass on the wrong artery, but the statute of limitations is up, you are given a specific amount of time from the date of discovery of the mistake to file your case.

Your attorney will interview you about your situation and have you see another physician to get an independent opinion. Your health care provider has medical malpractice insurance and will be represented by the attorney for the insurance company. Most cases start out with a discovery process where information is exchanged. You and the health care provider will likely be deposed. Your attorney will work on reaching a settlement. If a settlement can’t be reached, your case will go to trial.

Medical malpractice cases are very common, but it is important to work with an attorney who understands your specific case and has a lot of experience with your type of case.

If you have been the victim of medical malpractice, LegalZoom might be able to help you receive what you are entitled to. Get a free personal injury evaluation and discuss your options and settlement possibilities with a lawyer.

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Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D. practiced law in New York, including divorce, mediation, family law, adoption, probate and estates, … Read more