Medical Malpractice Law

Medical malpractice occurs when a health care professional, hospital or clinic causes injury to a patient as the result of a negligent act or omission when providing medical care, resulting in injury to a patient. An injured patient may bring a medical malpractice claim or file a lawsuit to recover compensation for the injury.

Medical malpractice may result from a negligent act, such as a mistake made during a surgical procedure, or through a negligent omission, such as the failure to diagnose cancer despite the presence of sufficient clinical evidence to support a diagnosis.

Medical malpractice laws vary significantly by state, and it is important to have any potential medical malpractice claim reviewed by an attorney in the state where the alleged malpractice occurred. Most malpractice cases are too complex and costly to pursue without the help of a lawyer.

Examples of Medical Malpractice

Medical malpractice can occur as the result of a wide variety of mistakes or omissions, including:

  • Failure to diagnose a medical condition;
  • Misdiagnosis of a medical condition;
  • Surgical errors;
  • Unnecessary medical treatment or surgery;
  • Medication errors, including prescribing the wrong medication or administering an incorrect dose;
  • Failure to provide adequate follow-up care following a medical test or procedure;
  • Unreasonable delay in the commencement of treatment for a medical condition; and
  • Lack of informed consent (failure to properly inform a patient of the risks of treatment).

Who May be Sued for Malpractice

Although people may think of medical malpractice claims as being made against medical doctors, other health professionals may also face medical malpractice claims. For example, dentists and orthodontists, nurses and nurse practitioners, chiropractors, osteopaths, mental health professionals, pharmacists, physical therapists, and other health professionals may be sued for malpractice.

Some malpractice claims will also identify as a defendant a hospital or clinic where the medical treatment was administered.

Proving a Malpractice Claim

In order to prevail in a medical malpractice claim, an injured patient must prove the following elements:

  1. Clinical relationship. A clinical relationship, such as a doctor-patient or psychologist-patient relationship, must have existed between the medical professional and the patient at the time the alleged malpractice occurred;
  2. Violation of the governing standard of care. In a medical malpractice lawsuit, the plaintiff must establish the duty of care that the defendant healthcare provider owed to the plaintiff, and that the care provided by the defendant failed to meet that standard.
  3. Causation. The plaintiff must prove that an injury proximately resulted from the defendant's violation of the governing standard of care.
  4. Damages. As a result of the healthcare provider's negligence, the patient suffered an injury.

Malpractice cases are normally decided by a preponderance of the evidence, meaning that a patient must prove that it is more likely than not that the negligent care caused the claimed injury. In a few states, a higher standard of proof is applied to the provision of emergency medical care, such as the requirement that medical error be proved by clear and convincing evidence.

Standard of Care

A health care professional is expected to provide care in a professional manner, meeting expected standards of care for the profession. A healthcare professional must act with an appropriate level of skill and prudence when diagnosing or treating patients. Patients have the right to expect that their healthcare providers will deliver care that is consistent with the applicable professional standards.

The standard of care may vary depending upon the skill and training of the professional, the facility in which care is provided, and the location where healthcare services are delivered. A medical specialist will normally be held to a higher standard of care within his or her medical specialty than a generalist who treats the same medical condition. A large, busy urban hospital may be held to a hire standard of care than a smaller hospital or rural clinic.

Not all mistakes made by a healthcare provider will violate the governing standard of care. Even when exercising reasonable care and skill in the treatment of a patient, a physician may make a mistake that results in injury, but that mistake will not support a medical malpractice claim.

Some states provide a level of immunity to a healthcare provider who encounters an emergency in a public place, such as an automobile accident, for medical care that the provider voluntarily administers to persons injured in the emergency.


In order to prevail in a medical malpractice action, the patient must prove that an injury resulted from the substandard medical care. If the patient has other medical conditions, the patient may have to prove that a claimed injury was caused by the alleged medical negligence and not by a different medical condition.


Not all incidents of medical malpractice will support a medical malpractice claim, as even a clear medical error may not result in damages to the patient. Damages are a necessary element of a medical malpractice claim. If the patient's treatment or prognosis is not affected by the negligent act or omission, the patient may not be entitled to compensation.

Examples of malpractice that may not result in damages include the following:

  • A doctor negligently misdiagnoses a medical condition and orders surgery, but the surgery would have been required even had the doctor made a correct diagnosis.
  • A patient's illness is misdiagnosed, but the patient is prescribed medication that cures the actual medical condition.
  • A patient receives an excessive dose of medication, but suffers no ill effect or other medical consequence from the error.

Damages that may result from medical malpractice may include disability, pain and suffering, mental anguish, loss of income, the cost of medical care necessitated by the malpractice, and loss of consortium.

Informed Consent

With the possible exception of emergency medical care, under the doctrine of informed consent, when a patient receives medical treatment the patient should be informed of the possible risks of the proposed treatment or procedure. The treatment should be provided only after the patient understands and accepts those risks. When a clinical or surgical procedure is administered to a patient, it is common for patients to be presented with written informed consent forms that lists the known risks of the treatment, and to be asked to sign the form prior to undergoing a medical procedure.

 A claim based upon lack of informed consent alleges that had the risks been properly disclosed to the patient, the patient would have declined treatment or sought a different course of treatment. If a healthcare professional fails to obtain informed consent, even if the care provided satisfied the governing standard of care, it may be possible for the patient to bring a medical malpractice case if the patient experiences an unexpected side-effect or complication.

Medical Malpractice Lawsuits

Medical malpractice cases are among the most difficult personal injury cases to litigate. States impose special rules and restrictions on medical malpractice cases that do not apply to other types of injury claim. Although the special requirements vary considerably from state to state, common examples include:

  • Notice requirements: Some states require that the proposed defendants in a malpractice case be given advance notice that a patient intends to bring a malpractice claim. The plaintiff may be required to describe the acts or omissions alleged to constitute malpractice and to describe the injury that is claimed to have resulted from malpractice.
  • Pretrial screening: Some states require that the plaintiff provide a certificate or affidavit from a qualified expert, stating that the expert has reviewed the facts and believes that malpractice occurred. Some states allow or require medical malpractice cases to be submitted to review panels or go through mediation or arbitration proceedings before the case can be filed, or before the case is allowed to proceed to trial.
  • Expert witness testimony: Most medical malpractice cases require the testimony of an expert witness. Most states require that an expert witness possess similar credentials and experience as compared to the defendant health care provider.
  • Statute of limitations: Most states have special statutes of limitations for medical malpractice cases, and the time limit for commencing a claim may be very short. Many states have also passed statutes of repose, providing that once a specified period of time passes from the date of the negligent act or omission that gave rise to the malpractice claim, even if the patient does not understand that malpractice occurred or could not have reasonably identified the injury or its cause at an earlier date, no lawsuit may be brought.
  • Damages caps: Many states limit the amount of compensation that a plaintiff may recover in a medical malpractice case. In some states, the amount that may be recovered by an injured patient for non-economic "pain and suffering" damages is very low. A small number of states impose a cap on total damages from a malpractice case, including the patient's economic losses.

Cost of Litigation

Medical malpractice actions are very expensive to bring, and the cost of litigation can easily reach $30,000 to $60,000 or more.

Although medical malpractice lawyers work on a contingency fee basis, meaning that they only collect an attorney fee if they successfully recover money for their client, due to the high cost of litigation lawyers tend to be highly selective when accepting medical malpractice cases. Even where medical negligence is clear, a lawyer will decline to accept a malpractice case if the amount of compensation that is likely to be recovered is not sufficient to justify the cost and time commitment required to litigate the claim.

Multiple Defendants

When a medical malpractice claim involves treatment in a hospital or clinic, the action will often include multiple defendants. The hospital or clinic may be named as a defendant along with the healthcare provider who is alleged to have provided inadequate care.

Sometimes multiple professionals are involved in a patient's care and may be alleged to have shared responsibility for an injury, or multiple providers may be identified as defendants due to the difficulty determining who is at fault for the patient's injury based upon the information and records available to the patient.

Medical Records Review

Due to the complexity of most medical malpractice claims, malpractice lawyers will usually have available medical and treatment records reviewed by a medical professional, in order to obtain an assessment of whether or not malpractice occurred and whether it will be possible to prove a malpractice claim in court.

Impact on the Plaintiff

Medical malpractice lawsuits can be a long and difficult process for an injured patient. The patient must not only deal with the injury that resulted from negligent care, but may have to participate in depositions, disclose personal medical and financial information to defense lawyers, and devote a considerable amount of time to assisting his or her lawyer with the case.

Although some cases settle within six months to a year of being filed, it is not unusual for years to pass between the time of an injury caused by malpractice and the time a malpractice case is finally tried or settled.

Copyright © 2018 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Apr 6, 2018.