While many people receive medical treatment without incident, thousands of patients are injured every year while receiving medical treatment from a doctor, nurse, anesthesiologist or other medical health professional. However, a legal claim does not necessarily arise simply because a surgery or other treatment did not go as expected. This handbook provides information about when a claim for medical malpractice may arise. If you believe that you have a valid claim for medical malpractice, consult a licensed attorney in your jurisdiction. 

Background on Medical Malpractice

A claim for medical malpractice arises when a patient is harmed by a medical professional who fails to perform his or her medical duties. Rules regarding medical malpractice are usually established pursuant to state statutes or the common law that emerges from years of cases in the courts.

Legal Elements
For any claim, there are certain legal elements that the moving party must prove in order to establish a right to recovery. These are referred to as legal elements. A medical malpractice claim requires the patient to prove the following elements by a preponderance of the evidence:  

Duty
The patient must be able to show that a doctor-patient relationship existed at the time when the claim arose. This means that the patient has hired the doctor and the doctor has agreed to provide treatment to the patient. A patient cannot sue a doctor who gave someone else medical advice and the patient followed it.

Medical malpractice claims are extremely fact specific. The patient must be able to show that the doctor had the duty to competently provide him or her with medical services. This element is not usually at issue in medical malpractice cases because it is usually clear that the medical professional was hired in this role and by implication was to provide competent services.

Breach of Standard of Care
Like with other types of negligence claims, the patient in a medical malpractice claim must show that the healthcare provider was negligent in some way. In medical malpractice claims, this is usually shown by establishing the acceptable standard of care required in the case and how the medical professional deviated from this standard of care.

Simply because a patient is unhappy with the results or suffered an injury does not make a claim for medical malpractice arise. Instead, the legal question is whether the healthcare professional's conduct and treatment conformed to the accepted standard of care. In other words, the healthcare provider's actions are compared to what a doctor in the same specialization and in a similar locale would have acted under similar circumstances.

In most situations, the plaintiff must present a medical expert to testify about the type of medical standard of care that was appropriate under the circumstances.

Causation
Additionally, the patient must be able to show that the medical professional's deviation from the standard of care caused the patient to suffer harm. Since a patient is generally seeking treatment for an existing condition, the question can arise whether the healthcare professional's conduct actually caused the injury or if the patient was already suffering from it. The burden of proof is by a preponderance of the evidence. This means that the healthcare professional's deviation from the standard of care more likely than not caused the patient to suffer the harm. However, this does not require showing that the healthcare professional's conduct definitively caused the injury.

Many actions may give rise to a claim for medical malpractice, including acts or omissions at the beginning of treatment, such as misdiagnosing a condition or acts or omissions that occur during treatment, such as making an improper cut during surgery. Because causation is a vital element of a medical malpractice claim and it can be difficult to determine which act actually caused a particular consequence, this is another vital area where it is important to have a medical expert.

Res Ipsa Loquitor
While the general rule in medical malpractice cases is that a patient needs a medical expert to testify about the relevant standard of care and the cause of the injury, in a few cases, this may not be necessary. A legal term called res ipsa loquitor allows a plaintiff in tort law to prove his or her case with circumstantial evidence when "the thing speaks for itself."

For example, if a surgeon left a medical instrument or sponge in a patient who later developed symptoms clearly associated with this oversight, the rebuttable presumption is that the defendant was negligent. This legal principle relies on showing that the harm would not have ordinarily occurred without the presence of negligence, that the defendant had control over the object that caused harm to the patient and no other plausible explanation exists to show that another cause resulted in injury.

Damages
Even if the patient can prove that the healthcare professional did act negligently, he or she may still not be able to show a right to recover. The patient must also be able to show specific damages that he or she suffered as a result of the deviation from the standard of care.

Damages may include:
·Medical expenses incurred to fix the problem
·Lost work or earning capacity
·Pain and suffering
·Mental anguish
·Loss of consortium

Common Medical Malpractice Claims

As stated above, a medical malpractice claim can arise under a number of scenarios. Medical malpractice is not only asserted against doctors; it is also asserted against other medical providers, including nurses, anesthesiologists, pharmacists and even hospitals. Some common medical malpractice claims are discussed below.

Failure to Diagnose or Misdiagnosis
Failing to diagnose or misdiagnosing a patient is usually the most common reason for a medical malpractice claim. Failing to diagnose a patient occurs when a healthcare provider fails to diagnose a serious disease for an unreasonable period of time. The consequence of failing to diagnose a patient expeditiously is that the patient may miss out on much needed treatment that may prevent serious harm or death. Misdiagnosing a patient with another condition may cause the patient to needlessly be subjected to unnecessary treatments and procedures.

With this type of claim, the emphasis is usually on how the treating doctor's actions or omissions compare with the acts of competent doctors within the same specialty. If the competent doctor would not have made this type of error, the treating healthcare provider may be liable for medical malpractice.

Failure to Warn a Patient
In order for patients to make informed decisions, they must be made aware of the known risks of a particular medical procedure or treatment. If the healthcare provider did not adequately provide this information and the patient suffered an adverse result and would have otherwise foregone the treatment had he or she been aware of the risks, the doctor may be held liable for medical malpractice.

Wrong Site Surgery
A wrong site surgery occurs when a healthcare professional does not read the patient's medical chart correctly and performs a surgery on the wrong part of the body.

Wrong Patient Surgery
A wrong patient surgery occurs when the healthcare professional operates on the correct portion of the body but performs the surgery on the wrong patient.

Improper Treatment
If a healthcare provider provides the patient with treatment in a way that competent doctors would not have or provides proper treatment but in an incompetent manner, a malpractice claim may lie.

Medication Mistake
Sometimes people are injured by the very thing that is supposed to make them feel better: medicine. A medication mistake may cause harm to the patient because the doctor failed to take into consideration the combination with other medications. Alternatively, an error of this nature may occur because the pharmacist or nurse did not read the prescription correctly and ordered the wrong medicine. Another common mistake is prescribing a patient with medication at an incorrect dosage.

Anesthesiology Mistake
A simple mistake in anesthesiology can have a life-altering consequence. Such a mistake may occur when the anesthesiologist gives slightly too much medicine, fails to take into account the patient's medical history or fails to inform the patient of potential risks of behaviors that can affect the patient who is to receive anesthesiology.

Childbirth Injuries
Another common medical malpractice claim applies to injuries that occur during childbirth. A baby may sustain any of the following injuries due to medical malpractice:
·Cerebral palsy
·Seizure disorders
·Fractures
·Nerve damage
·Other brain injuries

The precipitating effects may be due to actions at childbirth or before it. Additionally, a claim for medical malpractice may arise if the healthcare provider failed to recognize signs of a troubled pregnancy, such as a contagious disease, anemia or birth defects. Misuse of forceps or a vacuum extractor or failing to order a cesarean section in a timely manner can also give rise to a claim.

Special Considerations for Medical Malpractice Cases

Medical malpractice cases comprise a complex form of personal injury cases. Some special considerations that should be given to medical malpractice cases include:

Statutes of Limitations
Medical malpractice claims must be brought within a certain period of time according to state law. If the patient does not bring file a lawsuit within the permitted timeframe, he or she can be forever barred from pursuing this claim. In many states, this is two or three years. However, state laws differ as to when the statute begins to run, with some counting down the clock from the date of injury and others starting the clock when the injury was discovered or should have been discovered.

State Requirements
States may also have different laws pertaining to medical malpractice claims than with other types of personal injury claims. For example, the patient may be required to submit a claim to a special panel that determines whether a claim may have arisen. If the panel concludes that it did not, the court may dismiss the case. Other states require the patient to receive a certificate of merit from a medical expert that reviews medical records and certifies that the healthcare provider deviated from the accepted standard of care that caused the patient's injuries. Still yet another rule may be that the patient is required to notify the healthcare provider before filing a claim.

Damage Caps
Many states impose a maximum amount of money that a patient can receive in a medical malpractice case. Even if the jury awards a higher amount, the patient can only receive the maximum amount.

Expense
Medical malpractice cases can be extremely expensive. They often involve exhaustive discovery requests that are expensive to respond to and that require more hours for an attorney to review. Additionally, expert witnesses often cost tens of thousands or even hundreds of thousands of dollars. Experts may not be local, which may require paying for their travel expenses.

Many attorneys who focus on medical malpractice cases accept the case on a contingency fee basis. This means that the attorney does not charge for the legal work that he or she does unless there is a settlement or jury award. If the patient does receive a settlement or award, the attorney takes the contracted percentage of the award. For example, if the patient is awarded $100,000 and the attorney's fee is one-third, he or she will receive $33,333 of the award for his or her fee.

However, there may be additional costs that the patient may be required to pay upfront, such as court costs, discovery costs and expert witness fees. Whether the attorney provides for these costs upfront and is then reimbursed if the patient wins the case is determined by the agreement between the patient and the attorney, as well as state ethics laws that regulate the practice of law. Due to the potential costs for the attorney, a thorough review of the merits of the case may be conducted before the attorney agrees to take the case.

Due to the complexity of medical malpractice cases, individuals who believe that they may have a medical malpractice claim with merit may wish to consult with a personal injury lawyer about their rights.

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