Is Early Discharge Medical Malpractice?

When a doctor or hospital sends you home before it's medically safe to do so, that decision could be medical negligence.

By , Attorney · University of Missouri–Kansas City School of Law

Every year in the United States, there are more than 35 million hospital discharges. A study of 1,000 patients who were readmitted within 30 days of hospital discharge found that about 4% of them—just under 40 patients—had been discharged from the hospital too soon. But is being discharged too soon medical malpractice? Depending on the facts, possibly so.

We'll discuss what medical malpractice is and how you prove it, explain when early discharge might be malpractice, and review the kinds of damages you can collect in an early discharge case.

What Is Medical Malpractice?

To win a medical malpractice claim, you'll need to prove:

  • that a health care provider who treated you was negligent, and
  • that the negligence caused you some injury.

As we'll see, proving medical negligence typically requires expert testimony. We'll explain what that means.

What Is Negligence?

Medical malpractice is just another name for medical negligence. Medical negligence happens when a health care provider—like a doctor or a nurse—fails to meet the applicable standard of care. The standard of care requires that a health care provider must act with the same level of care and skill that a reasonably careful provider with similar training and experience would use under similar circumstances.

Here's a simple example. You go to your family doctor complaining of a sore throat. The doctor examines you and diagnoses a sinus infection. Later on, another doctor discovers that you've got throat cancer. Did your family doctor commit malpractice by failing to diagnose your cancer sooner?

To answer that question, we ask whether a reasonably careful family doctor with similar experience would have correctly diagnosed you, based on the symptoms you had when you first visited your family doctor. If the answer is yes, you might have a malpractice claim.

Did the Negligence Cause You Some Injury?

It's not enough to prove negligence. You also must prove that the negligence caused you some injury.

Let's continue with our failure-to-diagnose example. What injury were you caused by the late cancer diagnosis? You might be able to show that the cancer spread, making it more difficult to treat. Perhaps your survival odds decreased, or you'll have to undergo more extensive and painful treatment than if a timely diagnosis had been made. If you can show any of these things, you've proved you were injured by the negligence.

How Do You Prove Medical Malpractice?

In almost every malpractice case, you'll need an expert witness to testify that your treating health care provider was negligent. Returning to our failure-to-diagnose example, how will you prove that your family practice doctor was negligent?

You'll need another family practice doctor—one with similar education and experience as your doctor—to testify that a reasonably careful family practice doctor, under similar circumstances, wouldn't have made the same mistake. Malpractice cases are often called a "battle of the experts," because your doctor (or other provider) will also have an expert who will testify there was no negligence.

Will you need an expert witness to prove that you were injured by the negligence? Possibly so. Let's return once more to our failure-to-diagnose example to illustrate. Proving the kinds of injuries we discussed above would require testimony from a doctor who specializes in cancer medicine. That doctor could be an expert witness, or it could be your treating cancer doctor. It's unlikely at an expert in family practice medicine would testify to your injuries.

When is Discharging a Patient Too Soon Medical Malpractice?

Not every medical mistake equals malpractice. So too, not every early hospital discharge is malpractice. In any potential early discharge case, here's the question: Would a reasonably careful doctor with similar experience have discharged you under similar circumstances? If a qualified expert witness says the answer is no, you might have a viable medical malpractice case.

Keep in mind that a winning malpractice claim requires proof of an injury. The fact that you're readmitted to the hospital after an early discharge, without more, doesn't mean you were injured. You must show that because you were discharged too soon:

  • you developed a medical problem or condition you wouldn't have developed had you not been discharged
  • a medical problem or condition you had at discharge got worse or became more difficult to treat than it would have been had you not been discharged, or
  • you suffered some other harm or injury you wouldn't have suffered if you'd not been discharged.

What Kinds of Medical Errors Can Result From an Early Discharge?

Discharging you from the hospital too soon can result in a variety of medical errors. For instance, an early discharge might cause your doctor to fail to properly diagnose or treat some medical condition. More specifically, here are a few common early discharge errors to look for:

  • your doctor didn't finish your medical workup before you were discharged
  • your doctor didn't get your test results prior to discharge, and
  • your doctor didn't make sure you were medically stable before you were discharged.

Failure to Complete Your Medical Workup

Oftentimes when you're admitted to the hospital, your doctor needs to "workup" the reason for your illness or condition. This means the doctor needs to order tests, studies, and perhaps consultations from other specialists to figure out what's going on.

Discharging you before your workup is done doesn't always mean your doctor was negligent. But problems sometimes arise when the hospital doctor wants you to have more post-discharge workup done by your primary care physician (PCP), but doesn't communicate what's needed to your PCP. When that happens, the result can be that you aren't correctly diagnosed or treated.

Failure to Get Your Test Results

Medical literature indicates that as many as 40% of all patients are discharged from the hospital before their test results are available. Again, this factor, by itself, doesn't always mean malpractice. But if you're sent home without adequate plans to make sure that pending test results get sent to your PCP for follow up, again, medical errors can result.

Failure to Make Sure You're Medically Stable

This particular error is a bit of a catch-all category and it can include, or be related to, the errors we've already discussed. But there can be other errors that fit under this heading. Here's a quick example.

Suppose that while hospitalized, you undergo some invasive procedure—maybe surgery or colonoscopy. The doctor discharges you shortly after the procedure is done. Within a day or two after your discharge, you're readmitted and found to have suffered some injury during the procedure that went undiagnosed during your first hospitalization.

One study found that out of 400 discharged hospital patients, 17% suffered some procedure-related injury that didn't appear until after discharge.

The fact that you suffered the injury isn't necessarily malpractice, because injuries are a known potential complication of invasive procedures. But discharging you soon after the procedure, and before there was time to see if symptoms of some procedure-related injury might arise, at the least raises the possibility of medical negligence.

Damages You Can Recover in an Early Discharge Case

If you can prove you were harmed by some medical negligence involving an early hospital discharge, you can recover two kinds of compensatory damages, called special damages and general damages. Let's have a closer look at both.

Special Damages

Special damages include out-of-pocket expenses you pay because of a provider's medical negligence. Here are some examples:

  • medical bills, for additional medical treatments necessitated by your early discharge
  • lost earnings, if you missed work on account of injuries caused by your early discharge, and
  • other bills you have to pay because of your injuries, for things like therapy, assistive devices, and medications.

General Damages

General damages are intended to compensate you for more intangible injuries, including such things as pain and suffering, emotional distress, and loss of enjoyment of life. Note that many states have enacted damage caps on general damages in medical malpractice cases. If you live in a damage cap state, the cap can significantly reduce the value of your medical malpractice case.

(Learn more about medical malpractice damages.)

Get Help With Your Early Discharge Case

Proving an early discharge malpractice case is no easy task. You'll first have to show medical negligence, which almost certainly will require one or more expert witnesses. Once you cross that hurdle, there's still more work to do: Proving that you were injured by the malpractice. Here too, you might need to rely on expert witnesses.

This isn't the kind of case you want to try to handle by yourself. You can bet that the doctor and hospital (and their insurance companies) will be represented by expert, experienced lawyers. You should be, too. Here's how to find a malpractice lawyer who's right for you and your case.

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