Medical Malpractice Overview

medical malpractice: doctor, stethoscope

Here's what you need to know if you're considering a medical malpractice claim

The United States has some of the highest standards in medical treatment.

Millions of people throughout the country receive medical treatment without any incident, but that doesn't stop thousands of people being injured or dying every year while visiting a healthcare professional.

Additionally, the number of fatalities caused by medical malpractice, is so significant that it needs to be inserted as one of the most common causes of death in the United States.

Medical malpractice claims

Medical Malpractice Deaths - 17 Years of Statistics

Medical Malpractice Deaths
17 Years of Statistics

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A claim for medical malpractice arises when a patient is harmed by a medical professional who fails to perform medical duties according to the appropriate standard of care.

In order for a victim to recover compensation for the injuries that he has suffered because of medical malpractice, the plaintiff has the burden of establishing certain legal elements.

These must be proven by a preponderance of the evidence, meaning that the evidence weighs more in favor of the plaintiff than the defendant, or to put it simply, "more likely than not."

Enjuris tip: A major point of contention in different states is when the statute of limitations time limit starts to tick for medical malpractice states. Some states start the clock on the date of the incident while in other states the time limit starts when the error was discovered.

To give you some context, a criminal trial requires that a defendant be proven guilty "beyond a reasonable doubt."

The elements that must be proven here include:


The plaintiff must establish the duty between himself and the defendant. This is usually a doctor-patient relationship. In a typical medical malpractice case, the doctor's duty is to provide competent medical services to the plaintiff.

Breach of standard of care

Medical malpractice claims are a highly specialized subgroup of personal injury cases. They are based on similar theories regarding negligence, but rather than asking whether the defendant failed to exercise reasonable care, the question is whether the defendant breached the accepted standard of care. This standard of care is based on medical regulations and customary treatment in the field.

As such, you won't be comparing the doctor to any ordinary plumber or barista you yank off the street to testify.

The defendant will face testimony from expert witnesses in the form of comparable doctors in his field who perform the same kind of operations or procedures. This is so the jury can understand what is accepted by the medical community in a similar area under similar circumstances.


It is not enough to show that the victim was unhappy with the results of medical treatment or even that he was injured. Injuries may still result even when doctors do everything in conformance with the standard of care.

The plaintiff has the responsibility to show that the medical professional's deviation from the standard of care caused the patient to suffer harm. There needs to be negligence. Causation can be difficult to prove in the medical malpractice context because the patient might have had something wrong with him before seeking treatment.

The number of fatalities caused by medical malpractice makes it one of the most common causes of death in the US. Tweet this

Since the plaintiff has the burden of proof in medical malpractice cases, he must usually show by evidence that convinces the jury that the healthcare professional's actions or lack thereof is what caused the actual injury, and that it deviated from the normal standard of care.

There are a number of causes for medical malpractice. A healthcare professional could misdiagnose a patient, causing him or her to receive unnecessary or inappropriate treatment. Patient charts may be confused, causing the wrong patient to be operated on or for the wrong body part to be operated on. In some cases, the error is in medication dosage or type.

While causation must be proven in most cases, there are some instances where a victim does not have to show causation.

This is when the nature of the mistake is so obvious that an expert witness does not have to explain how it could cause harm. This may occur when a doctor leaves a medical instrument, sponge or towel in a patient who later developed symptoms or an infection.

Damages in medical malpractice cases

The victim must have suffered some damages due to the medical negligence in order to be successful with his or her medical malpractice case. For example, he or she may have incurred additional medical expenses to fix the problem, lost work due to the problem or had his or her romantic relationship suffer as a result of the medical mistake.

Med mal statutes of limitations

Medical malpractice cases often have a very tight statute of limitations that serves as a timeline for when a case can be filed. If the lawsuit is not brought before this time, the claim can be barred and the victim can be prohibited from recovering.

In many states, this time limit is three years. Some states have even shorter timelines.

A major point of contention in different states is when this time limit starts to tick with some states starting on the date of the incident while in other states the time limit starts when the error was discovered.

Medical malpractice damage caps

Many states have implemented damage caps regarding medical malpractice cases. The states that have these laws are often concerned with the increasing cost of insurance and place a ceiling on the amount of damages that a victim can recover.

Sometimes the cap only applies to non-economic damages such as pain and suffering and mental distress while not applying to economic damages that can be easier to calculate based on objective evidence, such as medical expenses and lost wages.

Additional requirements for some states

Some states have specific requirements regarding medical malpractice claims that differ from pursuing other personal injury cases.

For example, the victim may be required to submit a claim to a panel that determines if the case gives rise to a medical malpractice claim. The court may dismiss the case if the panel finds that no such claim has arisen. Other states first require a certificate from a medical expert that establishes the basis of the claim.

Expenses of medical malpractice cases

Medical malpractice cases are some of the most expensive types of cases to litigate. This is because it is often very expensive to hire medical experts and conduct investigation into these cases. Additionally, discovery can be exhaustive and may require additional payment of expenses.

Enjuris tip: Medical malpractice cases are some of the most expensive types of cases to litigate. See about negotiating fees with your lawyer.

Many personal injury lawyers take medical malpractice cases based on a contingency fee in which he does not charge attorney fees upfront and only receives payment if the claim results in a settlement or verdict.

However, it is important that individuals have a firm understanding of how expenses like discovery expenses, court costs and expert fees will be allocated. Generally the agreement is "contingency plus fees," in which fees are paid back out of the settlement and then it is distributed among the parties.

Legal assistance

Individuals who believe that their healthcare professional caused their injury may decide to contact a medical malpractice lawyer for advice. This can be an overwhelming process, so if you need a good teammate on your side, check out the Enjuris law firm directory for help!

How to find the best medical malpractice attorney for your case

It is important to do plenty of research and choose a medical malpractice lawyer with many years of experience in medical negligence legal work. Medical malpractice law is a very specialized area that requires an attorney with a lot of experience. This is because there is plenty of overlap between complicated medical and legal matters. There also are unique procedural matters that come up in medical malpractice cases.

Most attorneys in medical malpractice law practice one of two kinds:

  • They defend doctors from medical malpractice suits, or
  • They represent patients who have been injured

Read more and see where to find a lawyer in How to Find the Right Medical Malpractice Attorney for Your Case.

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