Medical Malpractice Law

What Is Medical Malpractice?

Medical malpractice occurs where a medical practitioner acts in a negligent manner when treating a medical condition. Malpractice can occur from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

  • Failure to diagnose, or misdiagnosis of a disease or medical condition;
  • Failure to provide appropriate treatment for a medical condition;
  • Unreasonable delay in treating a diagnosed medical condition;

The laws and rules governing malpractice lawsuits in each state can vary significantly.

Informed Consent

A medical practitioner may also be legally liable if a patient does not give "informed consent" to a medical procedure that results in a harm to the patient, even if the procedure is performed properly.

For example, if a doctor does not tell a patient that a surgical procedure has a 50% chance of causing paralysis, the patient does not have the necessary information to make an informed choice to either have or refuse the operation.

If the patient has the operation, and is paralyzed as a result, the doctor may be liable even if the operation was performed flawlessly, as the patient might have refused the surgery if the risks were known.

Medical Error Without Harm

If the patient is not harmed by the physician's error, the patient cannot recover damages as the result of the error. For example, if a doctor misdiagnoses stomach pain as caused by appendicitis, and surgery discloses that it resulted from a perforated ulcer, if the patient would have required the surgery to repair the ulcer the patient will probably be unable to bring a lawsuit - the surgery was necessary even with the correct diagnosis. However, if the patient was only suffering from indigestion, the unnecessary surgical procedure most likely would support a malpractice action.

The Impact of "Tort Reform"

Medical malpractice actions have been significantly affected by "tort reform." Malpractice cases are very expensive to litigate, and your recovery of damages may be limited by statute. It is necessary to seek advice from medical experts, who can be very costly to hire. Due to the highly technical nature of medical malpractice litigation, it is usually best to go to an attorney who specializes in medical malpractice law, and who has the resources necessary to develop your case, hire appropriate experts and, if necessary, to take your case to trial.

The High Cost of Malpractice Litigation

Sometimes, even when there is a clear case of medical negligence, a suit may not be appropriate. Due to the high costs of litigating medical malpractice cases, some injured people will find that the cost of litigation will exceed the amount of any damages award, and they are forced to choose between abandoning their claim or pursuing it at a financial loss "as a matter of principle."

Finding A Good Lawyer

Medical malpractice law is a highly technical, specialized field. You will find that some medical malpractice attorneys primarily handle birth trauma cases, while others handle surgical errors, and others handle misdiagnosis of cancer, or some other narrow area of medical negligence. If your case is very technical, you should seek an appropriately specialized lawyer.

When you are consulting malpractice attorneys, it is helpful if you can provide them with copies any documents or records that you have, relating to your case. Before hiring a malpractice lawyer, consider reading our article on how to hire a personal injury attorney. You may also want to ask the following questions:

  • How much experience do you have with medical malpractice cases?
  • How much experience do you have with cases like mine?
  • How do keep yourself educated about current medical issues?
  • Do you have the financial resources to take my case to trial, if necessary?
  • How many medical malpractice cases have you taken to trial?
  • How do you find medical experts for your malpractice cases?

Most medical malpractice attorneys take their cases on a "contingency" basis, where the attorney fee is a percentage of the amount recovered from the defendant through judgment or settlement (usually 1/3 of the judgment, after costs and fees are deducted). It is unusual for attorneys to take malpractice cases on a "retained" basis, where the client pays the attorney fees and costs but receives the entire judgment or settlement, as few clients can afford that option. In many malpractice cases, by the time a case reaches trial, costs alone can exceed $100,000.00.

Medical malpractice cases are expensive and difficult, and attorneys choose their battles very carefully. Don't feel hurt if an attorney refuses your case, and don't be bashful about requesting a referral to another attorney for a "second opinion."

You may find that an attorney's initial acceptance of your case is conditioned upon a thorough investigation and review of the medical records. You will need to provide your attorney with the names of all physicians who have treated you, so that all of your medical records can be reviewed. It is important that you tell your attorney about all of your doctors and medical conditions, even if you think they don't have anything to do with your case.

A Long, Difficult Process

When you initiate medical malpractice litigation, you should be aware that it can be a very long, difficult process. You may find yourself answering very personal questions, including in response to "interrogatories" (written questions) and at "depositions" (live testimony, taken under oath, often at an attorney's office), and spending a surprising amount of time assisting your attorney with your case. While some cases are resolved quickly, it may be months or years before your case is resolved.

Notice: The examples included in this article are for illustrative purposes only. Real life is a lot more complicated than these examples. You should not take anything in this article as indicating that you do or do not have a valid malpractice action. That determination should only be made after a thorough review of your case by a malpractice specialist. Remember also that attorneys may have different perspectives on your case - even if your case is initially declined, don't be afraid to seek an opinion from another law office.

Copyright © 2005 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 Nov 8, 2014.