Medical Malpractice Basics

Medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who fails to
competently perform his or her medical duties. The rules about medical malpractice -- from when you must bring your
lawsuit to whether you must notify the doctor ahead of time -- vary from state to state. But there are some general
principals and broad categories of rules that apply to most medical malpractice cases. Here's an overview of the law and
some of these special rules.
Basic Requirements for a Claim
To prove that medical malpractice occurred, you must be able to show all of these things:
A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor
you are suing -- this means you hired the doctor and the doctor agreed to be hired. For example, you can't sue a
doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to
prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently
arise where a consulting physician did not treat you directly.
The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor
is liable for medical malpractice. The doctor must have been negligent in connection with your diagnosis or treatment.
To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor,
under the same circumstances, would not have. The doctor's care is not required to be the best possible, but simply
"reasonably skillful and careful." Whether the doctor was reasonably skillful and careful is often at the heart of a
medical malpractice claim. Almost all states require that the patient present a medical expert to discuss the
appropriate medical standard of care and show how the defendant deviated from that standard.
The doctor's negligence caused the injury. Because many malpractice cases involve patients that were already
sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm.
For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be
hard to prove that the doctor's negligence caused the death rather than the cancer. The patient must show that it is
"more likely than not" that the doctor's incompetence directly caused the injury. Usually, the patient must have a
medical expert testify that the doctor's negligence caused the injury.
The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards in his
or her field, the patient can't sue for malpractice if the patient didn't suffer any harm. Here are examples of the types
of harm patients can sue for:
 physical pain
 mental anguish
 additional medical bills, and
 lost work and lost earning capacity.
(Learn more about Damages in Medical Malpractice Cases.)
Common Types of Medical Malpractice
A wide variety of situations can lead to a medical malpractice claim -- from a doctor leaving a sponge in a patient's
stomach during an operation to failing to tell a patient that a prescribed drug might cause heart failure. Most medical
malpractice claims fall into one of these categories:
Failure to diagnose. If a competent doctor would have discovered the patient's illness or made a different diagnosis,
which in turn would have led to a better outcome than the one actually achieved, then the patient may have a viable
medical malpractice claim.
Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could
have a medical malpractice claim. In a similar vein, it may also be malpractice if the doctor selects the appropriate
treatment but administers it incompetently.
Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or
course of treatment -- this is known as the duty of informed consent. If a patient, once properly informed of possible
risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the
patient is injured by the procedure (in a way that the doctor should have warned could happen). (To learn more, read
Nolo's article Medical Malpractice: Informed Consent.)
Special Requirements in Medical Malpractice Cases
Many states have special rules and procedures for medical malpractice claims. It is important to know about these
rules and follow them carefully.
Medical malpractice cases must be brought soon after the injury. In most states, you must bring a medical
malpractice claim fairly quickly -- often between six months and two years, depending on the state. (The time period
in which you must bring the lawsuit is called the "statute of limitations.") If you don't file the lawsuit within the specified
period of time, the court will dismiss the case regardless of the facts.
When the time period starts ticking also depends on the state. In some states, the clock starts when the negligent act
occurred; in others, it starts when the patient should have discovered the injury.
Special medical malpractice review panels. Many states require the patient to first submit the claim to a
malpractice review panel. This panel of experts will hear arguments, review evidence and expert testimony, and then
decide whether malpractice has occurred. The panel decision does not replace an actual medical malpractice lawsuit,
and the panel cannot award damages, but it's a hoop the patient must jump through before getting to court. The
findings of the review panel can be presented in court, and courts often rely on a review panel's finding of no medical
malpractice to throw out a case before it goes to trial.
Special notice requirements. Some states require that the patient give the doctor notice of the malpractice claim, in
the form of a basic description, before filing anything.
Expert testimony is required. Expert opinions are often a crucial feature of the patient's case. A qualified expert is
usually required at trial. (And often, expert testimony or an expert affidavit is required at the malpractice review panel
proceedings prior to commencing trial.) State rules vary as to what makes somebody qualified to provide expert
medical testimony, but generally it is someone with experience in the particular field at issue. In a very limited number
of circumstances, expert testimony is not required, such as when a surgical towel is left inside the patient after a
surgery.
Limits on damage awards. Many states limit or "cap" the amount of money that can be awarded to a medical
malpractice patient. (Get the details: State-by-State Medical Malpractice Damage Caps.)

Damages in Medical Malpractice Cases

A patient injured by medical malpractice can recover a wide variety of damages -- from medical bills to the loss of
enjoyment of life to future earnings losses. If the medical malpractice results in the patient's death, the patient's family
and heirs can also recover damages.
This article covers the types of damages that patients and their families can recover in medical malpractice lawsuits,
as well as some of the limits that states impose on the amounts that can be recovered. (To learn more about medical
malpractice claims, read Nolo's article Medical Malpractice Basics.)
General, Special, and Punitive Damages
To get a damage award, the patient must show that:
 the medical malpractice caused the damages in some way, and
 some kind of approximate price tag can be put on the damages.

The three categories of damages available in medical malpractice cases are general, special, and punitive.
General damages. General damages refer to the patient's cost of suffering that, although real, cannot by its nature
have a definite price. The most common examples are:
 loss of enjoyment of life
 physical and mental pain and suffering, and
 loss of future earning capacity.

Every case is different and there are no clear rules about how the exact amount of damages is determined. To arrive
at a dollar value, the patient and others will give evidence about the patient's pain and suffering, loss of enjoyment,
and so on. An expert might testify (give evidence) about the usual consequences of the patient's injury. If the patient
is relatively young and will be impaired long term, expert testimony about how to estimate the value of lost earning
capacity may be necessary.
Keep in mind that general damages aren't available for an injury existing before the malpractice, or the pain and
suffering that a pre-malpractice injury, by itself, will cause in the future.
Special damages. Special damages cover the more quantifiable expenses caused by the medical malpractice,
including medical bills and past missed work. Although there is often some guesswork involved, particularly when it
comes to future medical expenses, special damages are typically more exact than general damages. An expert may
still be useful, but in some states simply submitting a certified copy of the medical bill is good enough, depending on
the facts of the case.
Punitive damages. In some circumstances, the patient may be able to recover punitive damages. The rules on when
a patient may get punitive damages vary from state to state, but the general requirement is this: The doctor must
have known that he or she was behaving in a harmful manner.
Example: A doctor intentionally leaves a sponge in the patient during surgery in order to create a reason for a
second surgery to remove the sponge. This behavior would warrant punitive damages.

The exact amount of punitive damages is up to the judge or jury, but typically cannot be more than several times the
amount of the special and general damages.
State Limitations on Damages
Many states place a cap on the maximum amount of damages the patient can recover. Some states put a cap on all
damages combined, saying a patient cannot recover more than, for example, $500,000. Others have a cap on
general damages but not special damages.
Many states also have rules that reduce the damages the doctor must pay by the amount the injured patient received
from other sources like insurance. Finally, many states also have statutes that limit the amount the patient's attorney
can charge for a malpractice case.
Get the details: State-by-State Medical Malpractice Damages Caps.
Damages Based on the Death of the Patient
All states have laws determining what damages can be recovered if the medical malpractice results in the patient's
death. These are called survival statutes and wrongful death statutes.
Survival statutes. Survival statutes allow the deceased patient's heirs or estate to recover damages that occurred
during the time period from the initial medical malpractice to the death of the patient. These damages generally
include everything allowed in a malpractice suit had the patient survived, except for damages relating to the future,
like earning capacity. Some survival statutes also provide for recovery of funeral expenses, although this is usually
part of the wrongful death statute.
Wrongful death statutes. Wrongful death statutes are designed to compensate the patient's family for their future
monetary loss. The calculation is more thorough than a simple projection of future salary -- it also considers factors
like the patient's spending, saving, and working habits. Compensation for the family's loss of companionship or
emotional harm is typically not allowed under the wrongful death statues, although recently some states have allowed
that kind of recovery. Depending on the state, not allfamily members can recover. For example, a state may allow the
patient's spouse and children to recover damages, but not the patient's parents (at least in the case of an adult
patient).

Medical Malpractice: When Can Patients Sue a Hospital for

Negligence?

If you are injured when receiving treatment in a hospital, can you sue the hospital for negligence or medical
malpractice? Though hospitals are often on the hook for incompetent care provided by employees like paramedics,
nurses, and medical technicians, they often are not responsible for a doctor's medical malpractice.
Here's a primer on when a hospital is, and is not, responsible for medical malpractice committed by its employees
and staff doctors.
Hospitals Are Liable for Employee Actions
If someone is an employee of a hospital, the hospital is responsible (liable) if that employee hurts a patient by acting
incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a
patient), the hospital is on the hook for any resulting injuries to the patient. (Keep in mind that not every mistake or
unfortunate event that happens in a hospital rises to the level of negligence. To learn more about what constitutes
medical malpractice, read Nolo's article Medical Malpractice Basics. )
Typically, nurses, medical technicians, and paramedics are hospital employees. As long as the employee was doing
something job related when he or she injured the patient, the patient can sue the hospital. For example, if a
paramedic employed by the hospital injects the wrong solution into the patient on the way to the hospital, particularly
if the medical situation is not life threatening, then the hospital is liable for the paramedic's mistake.
However, if a doctor makes a mistake and injures a patient while working in the hospital, the hospital will not be liable
for the doctor's mistake unless the doctor is an employee (which is unlikely -- see below).
Also, if a hospital employee commits malpractice while under a doctor's supervision, the patient can sue the doctor, but
the hospital may be off the hook. Whether an employee is under the supervision of the doctor when the misdeed
occurs depends on:
 whether the doctor was present, and
 whether the doctor had control to prevent the employee's negligence.

For example, a surgeon may be liable if an attending nurse miscounts the surgical sponges, leading the surgeon to
leave a sponge in the patient. (To learn more about this situation, read Nolo's article Nursing Malpractice) .
Are Doctors Hospital Employees?
Whether a doctor is a hospital employee depends on the nature of his or her relationship with the hospital. Though
some doctors are hospital employees, most doctors are not. Non-employee doctors are independent contractors,
which means that the hospital cannot be held responsible for the doctor's medical malpractice, even if the malpractice
happened in the hospital.
A doctor is more likely to be an employee (rather than an independent contractor) if:
 the hospital controls the doctor's working hours and vacation time, or
 the hospital sets the fees the doctor can charge.
Exceptions: When Hospitals Are Liable for Non-Employee Doctors' Actions
Even if a hospital would generally not be liable for an independent contractor doctor's malpractice, a hospital may be
held responsible in certain situations.
Hospital Appeared to be the Doctor's Employer
If the hospital does not make it clear to a patient that the doctor is not an employee, the patient can sue the hospital for
the doctor's malpractice. Hospitals attempt to avoid this problem by informing patients in the admission forms that the
doctor is not a hospital employee.
The situation is different for patients injured in an emergency room. Usually, the hospital does not have an
opportunity to inform emergency room patients that a doctor is not an employee. This means that ER patients can
often sue the hospital for a doctor's medical malpractice. There are also a few states that say a hospital can be sued
for emergency room malpractice regardless of what the patient believed or was told. (To learn more, read Nolo's
article Medical Malpractice During Emergencies.)
Hospital Keeps an Incompetent Doctor on Staff
A number of states hold the hospital responsible if it gives staff privileges to an incompetent or dangerous doctor,
even if the doctor is an independent contractor. The hospital is also responsible if it should have known that a
previously safe doctor had become incompetent or dangerous. For example, if a doctor becomes severely addicted to
drugs and the hospital management knew about it, or it was so obvious they should have known about it, a patient
injured by that doctor can sue the hospital.

Medical Malpractice: Common Errors by Doctors and

Hospitals

Medical malpractice occurs when patients are harmed by the actions (or inaction) of doctors and other healthcare
professionals. Common types of cases in this area of law include childbirth injuries, medical misdiagnosis, surgery
errors, and hospital related infections. Learn about common types of medical malpractice and legal issues like
informed consent, medical negligence, and damage caps in medical malpractice cases.

Medical malpractice cases arise when a patient is harmed by a doctor or nurse (or other medical professional) who
fails to provide proper health care treatment. Fortunately, doctors, nurses, and hospitals make mistakes in a small
number of cases. But within that small minority of cases, certain types of errors crop up more often than others. Read
on to learn about the doctor and hospital mistakes that make up the bulk of medical malpractice lawsuits.
A word of caution on the types of medical errors described below: Keep in mind that just because a doctor made a
mistake or a patient was unhappy with a course of treatment or its outcome, that doesn't mean malpractice
necessarily occurred. In order to meet the legal definition of medical malpractice, the doctor or medical provider must
have been negligent in some way -- meaning the doctor was not reasonably skillful or competent, and that
incompetence harmed the patient. (To learn more about what does and does not constitute medical malpractice, see Nolo's
article Medical Malpractice Basics.)
Misdiagnosis or Delayed Diagnosis
Misdiagnosis and delayed diagnosis account for a large percentage of medical malpractice complaints. When a
doctor misdiagnoses a condition (or fails to diagnose a serious disease for some time), the patient might miss
treatment opportunities that could have prevented serious harm or even death.
The key in proving a medical malpractice claim based on misdiagnosis or delayed diagnosis is to compare what the
treating doctor did (or didn't do) to how other competent doctors within the same speciality would have handled the
case. If a reasonably skillful and competent doctor under the same circumstances would not have made the
diagnostic error, then the treating doctor may be liable for malpractice. (To learn more about proving a misdiagnosis
claim, see Nolo's article Medical Malpractice: Misdiagnosis and Delayed Diagnosis.)
Childbirth Injuries
A number of fetal injuries can be caused by medical malpractice, including brain injuries (such as cerebral palsy and
seizure disorders), fractured bones, and erb's and klumpke's palsy (damage to nerves that control the arms and
hands). However, keep in mind that these injuries are more often caused by something other than medical
malpractice.
A physician or obstetrician's negligence can happen during childbirth or long before.
Negligent prenatal care. If negligent medical treatment is provided during the pregnancy, it could harm the fetus or
the mother (or both). Some examples of negligent prenatal care include the physician or obstetrician's:
 failure to diagnose a medical condition of the mother, such as preeclampsia, Rh incompatibility, hypoglycemia, anemia, or
gestational diabetes
 failure to identify birth defects
 failure to identify ectopic pregnancies, or
 failure to diagnose a disease that could be contagious to the mother's fetus (such as genital herpes or neonatal lupus).

Negligence during childbirth. A doctor's negligence during childbirth could cause injury to the baby and harm to the
mother. Common medical errors during childbirth include the physician or obstetrician's:
 failure to anticipate birth complications due to the baby's large size or because the umbilical cord got tangled
 failure to respond to signs of fetal distress
 failure to order a cesarean section when one was appropriate, or
 incompetent use of forceps or a vacuum extractor.
(To learn more about birth injuries, see Nolo's article Birth-Related Medical Malpractice.)
Medication Errors
According to a 2006 study, medication errors harm approximately 1.5 million people in the United States every year.
Medication errors can occur many ways -- from the initial prescription to the administration of the drug. For example,
a patient might be harmed if the doctor prescribes the wrong medication. Or the patient might be harmed by
medication that the doctor prescribes to treat a misdiagnosed condition. In a hospital setting, the right drug might be
given to the wrong patient.
However, by far the most common medication errors involve dosage -- the patient gets too much or too little of a
drug. This can happen several ways:
 The doctor writes an incorrect dosage on the prescription.
 The prescription is correct, but the nurse administers the incorrect amount.
 Equipment that administers the drug malfunctions, causing a large dose of medication to be administered over a short period
of time. For example, this can happen when a defibrillator has a dead battery or an intravenous pump has a dislodged valve.
Anesthesia Errors
Anesthesia mistakes are usually more dangerous than surgery mistakes. Even a small error by the anesthesiologist
can result in permanent injury, brain damage, or even death. An anesthesiologist can commit medical malpractice
even before anesthesia is administered by:
 failing to investigate the patient's medical history for possible complications, or
 failing to inform the patient of the risks involved if preoperative instructions aren't followed (like not eating for a certain
period of time prior to surgery).

Anesthesia errors that can occur during surgery include:

 giving too much anesthesia to the patient
 failing to monitor the patient's vital signs
 improperly intubating patients (putting a tube in the trachea to assist with breathing), or
 using defective equipment.
Surgery Errors
Some medical malpractice claims arise from mistakes made in the operating room. A surgeon might be negligent
during the operation itself (puncturing internal organs, operating on the wrong body part, or leaving surgical
instruments in the body) or the nursing staff might be negligent in administering post-op care (which could result in
complications like serious infection).

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