Medical Malpractice Claims and Settlements

• Medical malpractice is a legitimate concern in our health care system. It's estimated that around 1.2 million U.S. hospital patients are harmed by medical errors every year.
• While many allegations of medical malpractice are legitimate, it's important to understand the difference between an undesired health care outcome and actual medical negligence.
• Bringing a medical malpractice lawsuit often means complying with special court rules, and while settlement is possible, these kinds of cases can be challenging for injured patients.

Bottom line: When a doctor or other health care provider's treatment mistake ends up causing harm, an injured patient might have a valid claim for medical malpractice, but there's a lot to consider before moving forward.

What Is Medical Malpractice?

When a doctor or other health care provider makes a mistake that harms a patient—making an existing health problem worse, or creating a new injury or health problem—there might be a case for medical malpractice. But since a patient's condition can worsen based on a wide variety of (often unpreventable) factors, there's a lot more to consider.

The key here is whether the health care professional's decision-making and actions—as well as the advice and information they conveyed to the patient—met the "medical standard of care." This is something of a legal yardstick that's used to evaluate a provider's conduct when a patient claims there was malpractice. Basically, this means:

• If the provider can show (through evidence and with the help of other medical experts) that they acted in line with the medical standard of care when treating the patient, proving malpractice will be difficult.
• If the injured patient (through their attorney and their own medical experts) can show exactly how and why the health care professional fell short of the crucial "standard of care" yardstick, the patient will have a decent chance of making a successful case.

Who Can I Sue for Medical Malpractice?

A medical malpractice claim can be brought against an individual health care professional, or against a health care facility who employs that person. In some situations, more than one provider might be on the legal hook for the patient's harm. Potential defendants in a medical malpractice lawsuit include:

• physicians
• surgeons
• specialists (such as those working in oncology, OB/GYN, and urology)
• registered nurses
• practical nurses
• anesthesiologists
• medical technicians
• pharmacists
• dentists
• psychiatrists, and
• hospitals and other care facilities.

What Evidence Is Needed In a Medical Malpractice Claim?

If you're thinking about making a medical malpractice claim against a health care professional, you'll need to do more than show that the provider made a mistake. And even when it's clear that some kind of medical error was made, unless you were harmed in some tangible way as a result, it probably doesn't make sense to pursue a claim.

With that in mind, let's look at the central evidence that an injured patient needs to be able to establish in order to prove that medical malpractice occurred.

Proving a Provider-Patient Relationship Existed

If a doctor began seeing you and treating you, this element is easy to prove. Questions most frequently arise here where a consulting physician did not treat you directly.

Establishing the Health Care Professional's Negligence

Remember, just because you're unhappy with your treatment or results does not mean the doctor, a nurse, or anyone else committed medical malpractice.

As we discussed earlier, an injured patient (usually through a qualified medical expert) will need to provide evidence showing:

• the appropriate medical standard of care that the doctor or other health care provider should have met under the treatment circumstances, and
• precisely how the defendant deviated from that standard.

Linking the Doctor's Negligence to Actual Injury

Because many malpractice cases are brought by patients who were already sick or injured when the alleged medical error took place, there's often a question of whether the doctor's conduct—negligent or not—actually caused the patient harm.

For example, let's say a patient dies during treatment for lung cancer, and it turns out the doctor was likely negligent in failing to warn the patient about potential side effects of a drug administered to the patient. Unless it's clear that the drug played some part in contributing to the patient's death, it would probably be hard to prove that the doctor's negligence caused any harm.

Again, here the injured patient must have a medical expert establish that the doctor's negligence caused the patient actual harm, such as

• physical pain
• mental anguish
• additional medical bills, and
• lost work and lost earning capacity.

Learn more about the requirements of a medical malpractice claim and the types of harm patients can sue for.

What Are Some Common Types of Medical Malpractice?

A wide variety of situations can lead to a medical malpractice claim— from a doctor leaving an instrument in a patient's abdomen during an operation to failing to warn of the side effects of a prescribed drug. Most medical malpractice claims fall into one of these categories:

Failure to Diagnose

If a competent doctor would have discovered the patient's illness or injury or made a different diagnosis, which in turn would have led to a better outcome than the actual one, the patient may have a viable medical malpractice claim. Learn more about misdiagnosis, delayed diagnosis, and medical malpractice.

Surgical Errors

The classic example here is a surgeon operating on the wrong limb or body part, but a wide spectrum of errors can occur during a surgical procedure, including mistakes that result in nerve damage, and failure to follow post-surgery protocol, resulting in infection. Learn more about surgical errors and medical malpractice.

Improper Course of Treatment

If a doctor recommends a particular course of treatment in response to the patient's illness or injury, and there's evidence that these recommendations fell below the accepted standard of care, the patient could have a medical malpractice claim. Similarly, if the doctor chooses the appropriate course of treatment but someone in the treatment chain acts incompetently, that could also equal malpractice.

Failure to Warn a Patient of Known Risks

Doctors have a duty to warn patients of known risks and potential outcomes of a procedure or course of treatment—this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is harmed by the procedure (in a way that the doctor should have warned about).

Anesthesia and Medication Errors

If a patient is given the wrong type or incorrect dosage of medication, any health care professional who committed a mistake along the chain from prescription to administration could be liable for malpractice. The same goes for the administration of anesthesia before a procedure.

Will My Medical Malpractice Case Settle?

Especially compared with other kinds of injury cases, settlement in a medical malpractice claim is anything but a guarantee.

Understandably, no health care provider wants to be accused of professional incompetence, so doctors and other providers (and their professional liability insurance companies) tend to dig in against medical malpractice claims. That means you can't expect a settlement unless you've established all of the elements we laid out a few sections earlier.

If things end up in the court process, data shows that health care providers may have the upper hand. When a medical malpractice lawsuit goes all the way to trial, the defendant health care provider prevails (meaning the patient gets no compensation) around 80 percent of the time, according to numerous National Institutes of Health studies.

How Much Can I Get In a Medical Malpractice Settlement?

The value of an injury claim is extremely case-specific, but there are a few fairly reliable predictors when it comes to how much a potential medical malpractice case might be worth, namely:

• the obviousness or egregiousness of the health care professional's error
• the severity of the harm caused by the malpractice, and
• the availability of liability insurance coverage to pay for a settlement or court award.

What's Required to File a Medical Malpractice Lawsuit?

Many states have special court-based rules and procedures for medical malpractice lawsuits. It's important to understand and comply with these rules in order to make sure you get your "day in court."

Medical Malpractice Lawsuits Must Be Filed Before the Statute of Limitations Deadline

In every state, a medical malpractice lawsuit needs to be brought to court within a specified period of time, which is set by a law called a "statute of limitations." If the lawsuit is filed after the deadline, the court will almost certainly dismiss the case regardless of how egregious the health care provider's mistake was, or how badly the patient was harmed.

The statute of limitations "clock" usually starts when the health care treatment error occurred, or when the patient discovered ( or should have discovered in the eyes of the law) that they were harmed by a health care provider's mistake.

Learn more about the statute of limitations in medical malpractice cases.

Special Medical Malpractice Review Panels

Many states require a patient to first submit their claim to a malpractice review panel before a lawsuit can be filed. This panel of experts will hear arguments, review evidence and expert testimony, and then decide whether the case has enough merit to proceed to court.

An "Affidavit of Merit" May Be Required

Alongside the filing of a medical malpractice lawsuit, many states require the plaintiff (the injured patient) to also file an "affidavit of merit" or similar document in which a qualified medical expert swears under oath that they've reviewed the plaintiff's case and believe that it's a valid one.

Are There Limits or "Caps" on Medical Malpractice Awards?

A number of states limit or "cap" the amount of money that can be awarded to a medical malpractice patient, even when the case is successful. Most of these caps are on "non-economic damages" only, which includes compensation for the patient's physical and mental "pain and suffering" resulting from the malpractice. Get the state-by-state details on medical malpractice damages caps.)

Do I Need to Hire a Medical Malpractice Lawyer?

In a word, yes. When you decide to sue a doctor or other health care provider for malpractice, you need an experienced legal professional on your side. As we mentioned above, these cases are notoriously tough to win. They require:

• thorough analysis of complex medical records
• careful, expert presentation of evidence, and
• the skills to fight for a fair result against health care providers and their insurance companies.

As we've touched on above, even an experienced medical malpractice lawyer often needs to rely on a network of medical expert witnesses and consultants to help build the best case for their client.

There's no substitute for a lawyer's experience and willingness to battle it out. And along those same lines, if you discuss your potential medical malpractice case with a number of different lawyers and they all turn down the chance to take it, now may be a good time to reconsider whether it's worth the significant time and effort to move forward. Learn more about getting help from an injury lawyer.