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What Is and Isn’t Medical Malpractice?


Published in medical malpractice on April 12, 2017.

You may hear a lot about medical malpractice, and wonder if you have a case. Medical malpractice follows a certain set of criteria, and providers have gotten much better in protecting themselves against lawsuits. Learn what you can sue for – and what medical malpractice is not.

What Is Medical Malpractice?

In a legal sense, we say medical malpractice occurs when a patient is hurt by a medical professional because they failed to competently perform their medical duties. It’s important to realize that doctors are not required to treat you to the best of their abilities, but they must adhere to a certain standard of care. To prove medical malpractice, the following must apply:

  • There was a doctor/patient relationship. In other words, you must have received medical advice or treatment in a professional capacity. You can’t sue over advice given in casual conversation at a dinner party, but if you saw that same doctor in office hours, you might have a case. Proving a professional relationship existed is easy, as it will be written in your medical records.
  • The doctor was negligent in your care. To prove negligence, you must prove that a doctor violated their duty of care. For most professions, this duty of care is defined as acting in the same manner as another doctor with the same degree of training and skills would have, given the same or similar circumstances. Whether a doctor is reasonably skillful is the heart of a medical malpractice case.
  • The negligence directly led to injury. This can be a sticking point in the process, as many people who pursue medical malpractice cases are already injured or sick. In the eyes of the law, the patient must show that the incident was “more likely than not” an instance of medical professional incompetence that led to their injuries. This requires expert testimony.
  • The injuries led to specific damages, such as medical expenses, lost wages, or pain and suffering.

Examples of What Is Medical Malpractice:

The following are common examples of medical malpractice:

  • Failure to diagnose. If a competent doctor would have discovered an illness or diagnosed a patient differently, and this would have led to a better outcome, this is an example of medical malpractice.
  • Improper treatment. If another reasonably competent would have selected a different course of treatment, leading to a better outcome, this is medical malpractice.
  • Failure to adequately warn of the risks. Every medical procedure comes with risks and benefits. Your doctor is required to disclose these so you can make an informed decision. If they fail to discuss a known risk of a procedure, and you were injured as a result, this may provide the framework for negligence.

Examples of What Is Not Medical Malpractice:

Just as there are common examples of medical malpractice, there are common scenarios in which people think they can sue, but they don’t have the legal grounds. These examples include:

  • Being unhappy with your treatment. You may not have achieved the outcome you were anticipating, but this is only the doctor’s fault if they were incompetent.
  • You were “almost” injured by incompetence. Even if a doctor was negligent, you don’t have a legal case unless you were injured as a result.
  • The statute of limitations has passed. In general, you have two years from the date of the illness or injury to file a claim, though this may vary by state, municipality, or circumstances surrounding the claim (minors have more time). At the end of this time, medical malpractice becomes moot.

Proving medical malpractice is not as easy as some people believe it to be. Getting the right compensation takes time, research, and the help of a skilled attorney.