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What is a Medical Malpractice Claim?

While medical malpractice has long been a concern for patients and families, it came into the spotlight in 2016. This is when Johns Hopkins Medicine released the results of a study that found that medical malpractice had become the third-leading cause of death in the United States. According to the widely-respected teaching hospital:

“Johns Hopkins patient safety experts . . . calculated that more than 250,000 deaths per year are due to medical error in the U.S. Their figure . . . surpasses the U.S. Centers for Disease Control and Prevention’s (CDC’s) third leading cause of death — respiratory disease, which kills close to 150,000 people per year.”

You read that correctly—more than a quarter of a million people in the United States die every year due to medical mistakes that could (and should) have been avoided. This is an alarming statistic. It also clearly suggests that there are far more cases of medical malpractice that, while not fatal, still leave patients and their families coping with unnecessary medical and financial complications.

What Is Medical Malpractice?

Given the prevalence of serious medical errors in the U.S., it is important that patients, families and caregivers have a clear understanding of how and when these errors occur. So, what is medical malpractice?

Medical malpractice is any mistake in the medical setting that reflects a healthcare provider’s failure to meet its duty of care. All healthcare providers—doctors, nurses, hospitals and others—owe a duty of care under their state’s laws. While healthcare providers’ duties vary from state to state (and even between localities and medical specialties in some cases), as a general rule, healthcare providers must treat their patients with the level of care that reasonably prudent providers would use under similar circumstances.

This means that not all medical errors rise to the level of medical malpractice. For example, after a catastrophic event, a hospital’s emergency room (ER) may be so chaotic and over capacity that doctors, nurses and administrators are all scrambling to do the best they can. In this type of scenario, certain errors (but not all errors) are to be expected. But, when doctors and others have the time and resources they need to make an accurate diagnosis and deliver appropriate treatment, the bar is much higher.

In legal terms, a claim for medical malpractice has four key “elements.” These elements are:

  • A Duty of Care Owed to the Patient – Healthcare providers do not automatically owe a duty in all circumstances. For example, while some states have good Samaritan laws, in most cases a duty of care only arises once there is a doctor-patient relationship. The first element of a medical malpractice claim is evidence of a duty of care.
  • A Breach of the Provider’s Duty of Care – Next, the healthcare provider must breach its duty of care. As discussed above, this generally involves failing to adhere to the prevailing standards in light of the provider’s geographic location and specialty.
  • Harm to the Patient – Third, the patient must suffer harm. This harm could take any of a variety of different forms—from not getting the treatment he or she needs to suffering physical trauma due to a surgical mistake.
  • Proof that the Provider’s Breach Caused the Patient’s Harm – Finally, there must be evidence that the provider’s breach caused the patient’s harm. If a patient has experienced complications regardless of the quality of care he or she received, then this “causation” element will be absent.

When all four elements are present, a patient (or the patient’s family) can—and should—file a medical malpractice claim. In many cases, medical malpractice can prove to be incredibly expensive. The costs of treating a medical mistake can easily climb into the tens, if not hundreds, of thousands of dollars. Medical malpractice can lead to pain and suffering, loss of enjoyment of life, and a variety of other types of “non-financial losses” as well, and these are also losses for which patients and families can recover just compensation.

Common Types of Medical Malpractice

While it takes proof of these four specific “elements” to establish a medical malpractice claim, medical malpractice can take many different forms. For example, some of the most common forms of medical malpractice include:

Delayed Diagnosis

Diagnostic errors are the single most common type of medical malpractice. This includes failing to diagnose a patient until either (i) the patient’s condition has already worsened or (ii) it is too late to administer effective treatment.

In a typical delayed diagnosis case, the patient will go in for treatment and be sent home without a diagnosis. But the patient’s symptoms won’t go away. Eventually, the patient will go back—perhaps even a third or fourth time—and then eventually the patient’s doctor will discover that the patient has been sick or injured all along. Delayed diagnosis cases can also involve patients waiting in the ER and not being seen until it is too late.


Along with delayed diagnoses, misdiagnoses are also alarmingly common. While a delayed diagnosis can lead to unnecessary complications (or even death), misdiagnoses present two parallel risks. When a doctor misdiagnoses a patient’s condition, not only doesn’t the patient get the treatment he or she needs, but the patient will also typically receive treatment or medications that are unnecessary. Unnecessary treatment and medications can cause unnecessary complications, and, as discussed below, medication errors and mistakes during treatment are also far too common.

Failure to Diagnosis

A third common form of diagnostic error is failure to diagnose. In this situation, the patient either: (i) never goes back to the same doctor for a follow-up visit; or (ii) passes away without ever receiving a proper diagnosis. These, obviously, can be tragic cases, and they can leave families struggling to understand and accept what went wrong. Failure to diagnose is among the leading factors behind medical malpractice being the third-leading cause of death in the United States.

Failure to Treat

Even if a doctor provides a prompt and accurate diagnosis, this doesn’t necessarily mean that a patient will receive the treatment he or she needs. Failure to treat is another common form of medical malpractice, and while healthcare providers may try to justify these errors by pointing to triage policies or claiming that their facilities were understaffed, these factors can themselves be evidence of negligence.

Medication Errors

Medication errors take three primary forms: (i) prescribing the wrong dose (either overdosing or underdosing); (ii) administering the wrong dose during inpatient treatment; and (iii) prescribing or administering the wrong medication. All three forms are equally avoidable, and all three forms will constitute medical malpractice in most cases.

Treatment Errors

Along with failure to treat, treatment errors are also common. This includes everything from failing to provide patients with necessary intravenous fluids or blood transfusions to causing damage with improper needle insertions.

Surgical Errors

Surgical errors are another type of medical malpractice that can take many different forms. These include performing surgery on the wrong body part or the wrong side of the body, failing to properly administer anesthesia, causing internal injuries with surgical tools, and leaving tools or gauze in a patient’s body, among others.

Pregnancy and Birthing Malpractice

Medical malpractice during pregnancy, labor or delivery can lead to serious or fatal complications for both the mother and the baby. Common examples of pregnancy and birthing malpractice include failure to diagnose maternal or fetal health conditions, failure to address a nuchal cord or other issues in the womb, improper delivery techniques, failure to recommend a necessary C-section, surgical errors during C-section deliveries, and errors in neonatal care.

Understanding Why Medical Malpractice is So Common

Given the substantial risks associated with medical malpractice and all of the modern medical technology that doctors have available today, why is medical malpractice so common? While there are a number of possible explanations, this quote from a doctor at Johns Hopkins Medicine likely gets to the heart of the issue:

“Incidence rates for deaths directly attributable to medical care gone awry haven’t been recognized in any standardized method for collecting national statistics. . . . The medical coding system was designed to maximize billing for physician services, not to collect national health statistics, as it is currently being used.”

In other words, our modern medical system often prioritizes billing over everything else—positive patient outcomes included. Oftentimes, doctors only spend a few minutes (at most) with their patients. It’s not that they don’t want to take time to understand their patients’ health conditions and treatment needs, but rather that the insurance companies will only pay for so much. Doctors often feel pressured to see as many patients as possible in order to bill as much as possible, and simply put, this means that many patients do not get the treatment they need.

Studies have also shown that fatigue is a major issue in the medical profession. Fatigue can significantly impact a doctor’s or nurse’s focus, judgment and decision-making ability. Alcohol and drug use are factors in some cases as well, and studies have also shown that using checklists and other systems in the medical setting could reduce instances of medical malpractice significantly.

Types of Healthcare Providers that Can Commit Medical Malpractice

As a practical matter, instances of medical malpractice are also prevalent simply because of the volume of the U.S. population’s healthcare needs—although this does justify medical malpractice being the nation’s third-leading cause of death. Medical malpractice is a risk in all healthcare settings, and all types of healthcare providers can commit malpractice. This includes (but is not limited to):

  • Anesthesiologists
  • Cardiologists
  • Dentists
  • Emergency medical technicians (EMTs)
  • Endocrinologists
  • Family medicine doctors
  • General practitioners
  • Lab technicians
  • Nurses
  • OB/GYNs
  • Oncologists
  • Orthopedists
  • Pathologists
  • Pediatricians
  • Pharmacists
  • Surgeons
  • Urologists
  • Other doctors and specialists

In many cases, healthcare facilities can be responsible for diagnostic failures, treatment errors, and other forms of medical malpractice as well. Triage errors, understaffing, hiring unqualified healthcare providers and other forms of negligence can give rise to claims against hospitals, clinics and other facilities.

Information About Filing a Medical Malpractice Lawsuit

For patients and families who are coping with the effects of medical malpractice, it is important to have a clear understanding of their legal rights. Here is some important information about filing a medical malpractice lawsuit:

Strict Deadlines Apply

In all 50 states, medical malpractice claims are subject to time limits known as “statutes of limitations.” Once the statute of limitations for a medical malpractice claim expires, the patient (or the patient’s family) can no longer file a claim. Some states have additional notice filing and other deadlines as well.

There Are Several Ways to Prove Medical Malpractice

While healthcare providers and facilities will usually deny any wrongdoing, there are several ways to prove medical malpractice. In some cases, a patient’s medical records will serve as adequate evidence on their own. In others, the patient’s or family’s lawyer can engage a medical expert to document how the patient’s treatment failed to meet the requisite standard of care.

Patients and Families Can Seek Many Forms of Compensation

When patients and families have medical malpractice claims, they can seek just compensation for the financial and non-financial costs of their (or their loved one’s) mistake. While medical malpractice damages are capped in some states, generally speaking, the types of compensation that are available in these cases include:

  • Medical expenses
  • Prescription and medical supply costs
  • Loss of earnings (and future earning potential)
  • Pain, suffering and emotional distress
  • Loss of companionship, consortium and enjoyment of life

Punitive Damages Are Available in Some Cases

In addition to seeking financial compensation, patients and families can also obtain punitive damages for medical malpractice in some cases. Punitive damage laws vary by state, and many states have caps on punitive damages in medical malpractice cases as well.

What Are Your Next Steps if You Suspect Medical Malpractice?

For patients and families who have concerns about medical malpractice, it is important to seek help promptly. This includes seeing a new doctor (at an unaffiliated medical facility) for any necessary treatment, and it also includes speaking with a lawyer as soon as possible. 

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Posted By: Samantha Saundry