Medical Malpractice Overview


An accident, injury, serious medical condition, or the onset of unusual ailments, can be stressful and traumatic. Feeling anxious and uncertain, you turn to your medical professional, seeking explanations, remedies, and solutions; what you did not expect to receive was further injury. Now you want answers and none are forthcoming; or rather, no one is willing to provide them.

We seek out healthcare providers because we trust them to heal us—we depend on them to figure out what is wrong, provide the necessary care we need, and help us feel better. Unfortunately, it doesn’t always work out that way and we experience further injury by providers who violate what is called a “medical standard of care.” Medical standard of care is typically defined as the level, quality, and type of care that a competent and skilled medical professional—with a similar background and in the same medical community—would provide under similar circumstances. Treatment less than this standard, resulting in long term or permanent injury to you, is considered negligence. The physical pain, emotional anguish, additional medical bills, lost earning capacity, and negative impact on overall quality of life are considered “damages” arising from the injury and form the basis for your malpractice claim.

Some common forms of medical mistakes include: prescription errors, misdiagnosis, failure to diagnose, delayed diagnosis, failure to treat, surgical errors, birth injuries—including prenatal and neonatal care, anesthesia errors, emergency room errors, and cosmetic surgery errors, among others.

When medical mistakes are made by health care professionals, it can be very costly for their Insurance companies, who have a vested interest in keeping the facts hidden and not admitting to any mistakes made.

What is Medical Malpractice?
Medical Malpractice occurs when a doctor, health care professional, etc., fails to provide proper health care treatment and you are harmed or injured as a result. It is important to keep in mind that just because a medical professional made some type of error or the results were not completely what you expected, medical malpractice did not necessarily occur. Although most medical procedures and treatments involve some degree of risk and possibility of complications; it does not follow that all complications are the result of negligence. Sometimes complications just happen.

Most medical malpractice claims revolve around whether a health care professional was negligent in either treating you in accordance with the accepted standard of care—or an expected level of care—or in failing to treat you. Medical negligence is always measured by what is known as the “standard of care,” and its violation.

What is the Standard of Care in Medical Malpractice Cases and how is it Determined?
As previously mentioned, the “medical standard of care” is typically defined as the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would typically do under similar circumstances. For example, a doctor in a large metropolitan area might be held to a different standard than a doctor practicing in a small rural community or a doctor working in an emergency room.

Healthcare Professionals and Malpractice Claims:
Medical Malpractice is not restricted to doctors. If a health care professional provides sub-standard care and you end up being harmed as a result, that is considered to be medical malpractice. Some of these forms of malpractice might include: Hospital Malpractice, Chiropractor Malpractice, Dental Malpractice, EMT and Paramedic Malpractice, Nursing Malpractice, Pharmacist Malpractice, Physical Therapy Malpractice, Psychiatrist Malpractice, Psychologist Malpractice and Radiology Malpractice.

There are three main types of malpractice lawsuits:
1. Negligence – This occurs when a hospital, doctor or other health care professional, through a negligent act or omission, causes an injury to you.
2. Lack of informed consent – This refers to the doctor’s responsibility to inform you of all risks associated with a treatment or surgery. If you were not properly informed of all risks, you may be able to pursue a case against the doctor for side effects you did not know were possible.
3. Breach of contract – This refers to a situation in which a doctor has promised you specific results following a procedure, and those are not the results you received. If this is the case, you may be able to sue for damages.

Proving Medical Malpractice:
In order for a plaintiff to prove Medical Malpractice and recover “damages,” four conditions must be met:

1. Duty – There must be the existence of a doctor/medical professional and patient relationship; a doctor owes certain duties to his or her patient—as does any medical professional—and a breach of any of these duties gives a cause of action for negligence against them.

What are some of the duties a doctor owes you as his patient?

a. To obtain prior informed consent from you before conducting diagnostic tests or surgery.
b. To warn and advise: This is a duty to communicate adequate information to you–meaning to disclose a diagnosis or provide warnings to you in a timely manner. Your doctor also has a duty to inform you of the dangers associated with drugs he is prescribing to you, and of the reasonable risks of any procedure or course of treatment.
c. To determine the best form of treatment for you and properly administer it.
d. To follow up, monitor, or provide sufficient “aftercare” to you.

2. Breach of Duty – This refers to the standard diagnostic and treatment practices that should always be followed by your doctor or medical professional, for a certain type of illness, patient, or circumstance. If this duty has been breached in anyway, it means your care deviated from an accepted norm of treatment and you were harmed as a result.

3. Harm – The physical, mental, and financial hardship you suffered as a result of your injury must be documented and verified such as: disability, loss of income, physical pain, suffering and hardship, and past and future medical bills.

4. Causation – You have to prove that the injury was the result of, or connected to, the negligence. In most cases, in order to do that, you will need to have at least one medical expert who will testify for you.

What is the Role of an Expert Witness in a Medical Malpractice Trial?
In a medical malpractice lawsuit, a qualified medical expert will testify as to what the negligent act was, how it caused injury to you, and how it breached the medical standard of care.

What are the most common forms of Medical Malpractice?
1. Prescription Drug Errors: Prescription errors are some of the most common forms of medical malpractice. Anyone who is involved with prescribing, administering, or manufacturing medications can be liable for prescription drug errors. This includes physicians, nurses, hospitals, pharmacies, pharmacists, and manufacturers. Some of the more frequent errors, for example, might involve prescribing or administering wrong medication for treatment, administering an incorrect dosage, failure to anticipate harmful drug interactions, or failure to warn of common side effects.

2. Diagnostic Errors: There are numerous ways that physicians or other medical professionals may make diagnostic mistakes and thereby violate the standard of care. The most common diagnostic mistakes are: misdiagnosis or wrong diagnosis, missed diagnosis, delayed diagnosis, failure to recognize complications, failure to diagnose a related disease, and failure to diagnose an unrelated disease.

3. Failure to Treat Errors: Failure-to-treat scenarios are those in which a doctor reaches the correct diagnosis but fails to treat the condition according to the standard of care. This might include premature discharge from a hospital, failure to refer a patient to a specialist, lack of proper follow-up care, ineffective treatment plan, and incompetent administration of an appropriate treatment.

4. Surgical Errors: Surgical mistakes are not always obvious, such as operating on an entirely wrong body part or leaving a surgical sponge inside of you. For example, sometimes damage from a surgical mistake might be an infection, internal organ damage or immune system failure. There are any number of contributing factors that might cause surgical errors such as surgeon fatigue, poor communication amongst surgical staff or inattentiveness, to name a few.

A surgical mistake can create enormous expense for you and may necessitate remedial follow-up procedures which may require time off work and subsequent wage loss. In some instances, your health may not be the same as it was before the surgical error, and may never be. Some of the more common surgical errors include: wrong site surgery—surgery performed on a wrong body part or organ; wrong patient surgery; use of unsanitary surgical instruments; damage to organs and tissues; nerve damage; or leaving a foreign object inside the body, among others.

5. Birth Injuries: Medical treatment provided by a medical professional before, during, or even after birth can lead to a malpractice claim if the care falls short of accepted standards and you and/or your baby are harmed. Injuries may occur because the doctor, nurse, or medical staff failed to properly assess your baby’s health during pregnancy or prior to childbirth, provided improper prenatal care or neonatal care, failed to properly assess a situation that arose during or directly after childbirth—and failed to provide appropriate medical care in response to that situation. Examples of injuries might include: Cerebral Palsy, seizure disorders, Erb’s palsy, Klumpke’s Paralysis, fractured bones, Shoulder Dystocia, etc.

6. Anesthesia Errors: Mistakes made with anesthesia are highly dangerous, and perhaps even more frequent than surgical mistakes. There is no such thing as a relatively “small” error by your anesthesiologist, because any slight miscalculation or procedural failure can produce serious consequences such as permanent injury, brain damage, or even death. Malpractice may occur even before anesthesia is administered by a failure to thoroughly review and assess your medical history for possible complications, or failing to fully apprise you of the risks of not following your preoperative instructions. Some anesthesia errors that can occur during surgery are:

a. Giving too much anesthesia to the patient,
b. Failing to monitor the patient’s vital signs,
c. Improper intubation, or
d. Using defective equipment.

7. Emergency Room Errors: A hospital ER can be highly stressful, confusing, challenging, and chaotic. Because of these realities, medical malpractice law may allow an emergency room physician a little more leeway than might be granted to other doctors who have generally more time to make a determination as to a proper course of treatment. However, there are still limits; emergency room physicians are still responsible for adhering to a medical standard of care, for emergency rooms, and can be held liable for any harm you suffer as a result of any substandard care. The most common types of emergency room errors include the following:

a. Breaching the standard level of care,
b. Misdiagnosis, delayed diagnosis, or misreading and/or misinterpreting medical test results,
c. Medication or prescription errors,
c. Refusal of patient treatment, and
d. Inadequate treatment or delay in treatment because of patient’s failure or inability to pay.

8. Nursing Negligence: Negligence occurs when a nurse does not act or perform her duties in the way a reasonably prudent nurse would, resulting in unnecessary suffering. All nurses are held to reasonable nursing standards of care; in other words, they will be judged against what other nurses in the same situation might have done. Negligence can occur in any aspect of nursing care, including:

a. Recording medical history,
b. Assessment of patient’s status,
c. Giving advice,
d. Performing an examination, treatment, or procedure,
e. Reporting or failing to report,
f. Testing or failure to report the results of a test,
g. Communication,
h. Documentation,
i. Medication Errors,
j. Use of equipment,
k. Failure to follow established health system’s policies and procedures.

What is Psychiatric Malpractice – When Can a Psychiatrist be Sued?
Psychiatrists, like any other medical professional, are required to adhere to the highest standard of medical care. This does include however, the additional responsibility of maintaining the safety of their patients—for instance with regard to suicide—but also any individuals that their patient might have shown intent to harm. Failing to do so might be possible grounds for malpractice. Common forms of psychiatric malpractice might include:

a. Failure to conduct a proper suicide risk assessment,
b. Failure to prevent a patient’s suicide,
c. Improper diagnosis, treatment, prescriptions,
d. Third Party Liability/Failure to Warn,
e. Exploitation of the Trust Relationship and Boundary violations,
f. False repressed memories.

Is There a Statute of Limitations for Medical Malpractice Lawsuits? Yes, please be aware that there are time limits—known as statutes of limitations—for filing a medical malpractice lawsuit. These vary according to state, and they start to run from the following dates:

• The date the malpractice occurred,
• The date you discovered the injury that occurred from the malpractice,
• The termination date of the relationship between the patient and the doctor
It is critical to find a medical malpractice attorney in your state that is most qualified to handle your case. Members of BlueBook Law Society are those attorneys who have been highly recommended for membership, by other leading attorneys throughout the country. We suggest you refer to the following medical malpractice attorneys:
Ohio Medical Malpractice attorney Gerry Leeseberg:

San Francisco, California Medical Malpractice attorney Ed Nevin:

San Francisco, California Medical Malpractice attorney Rich Schoenberger:

Stockton, California Medical Malpractice attorney Stew Tabak:

Baltimore, Maryland/D.C. Medical Malpractice attorney Henry Dugan:

D.C. Medical Malpractice attorney Patrick Malone:

New Jersey Medical Malpractice attorney Dennis Donnelly:

Kansas Medical Malpractice attorney Jim Bartimus:

Atlanta, Georgia Medical Malpractice attorney Adam Malone:

Phoenix, Arizona Medical Malpractice attorney Brian Leonard:

North Carolina Medical Malpractice attorney William Mills:

Chicago, Illinois Medical Malpractice attorney David Axelrod:

Pittsburgh, Pennsylvania Medical Malpractice attorney James Dattilo:

Rochester, NY Medical Malpractice attorney Peter Rodgers:

Peter T. Rodgers

Seattle, Washington Medical Malpractice attorney Lish Whitson:

Lish Whitson