Medical errors that lead to medical malpractice claims typically fall into one of these categories:
Truth be told, there's no limit to the kinds of medical mistakes that can end up in a malpractice case. A medical malpractice lawyer in your state can tell you more.
Learn more about common medical mistakes.
The terms "standard of care" and "duty of care" refer to the same thing—the level of care a provider must use when treating or caring for a patient. While there are different ways to describe the standard or duty of care, they all come down to this basic definition: Your provider must use that degree of care and skill that an ordinarily careful provider with similar education and training would use under similar circumstances.
Typically, it's not hard to plug the relevant facts of a case into this definition to state the applicable standard of duty or care. For example, suppose that your provider is a medical doctor who's board certified in neurology, with advanced fellowship training and experience in treating diseases and conditions of the spine, and who practices at a major metropolitan teaching hospital.
The standard of care would require your provider to use that degree of care and skill that an ordinarily careful medical doctor who's board certified in neurology, with advanced fellowship training and experience in treating diseases and conditions of the spine, and who practices at a major metropolitan teaching hospital would use under circumstances similar to those of your care.
In almost every medical malpractice case, you'll need an expert witness—a provider with the same or very similar credentials as those of your provider—to prove the applicable standard of care.
Learn more about the standard of care in a malpractice case.
To win your medical malpractice case, you'll have to prove that:
Negligence. To prove that your provider was negligent, your expert witness (see above) must establish two things:
Proving that your provider was negligent is necessary to win your case, but you've still got more work to do.
Injury. You must prove that you were harmed in some way. Perhaps the condition for which you were being treated actually got worse. Maybe you suffered new injuries, or developed a new illness or condition you didn't have before. The bottom line is you must prove that you're worse off now than before you were treated.
Causation. Finally, your expert witness must prove that your injuries were caused by your provider's negligent care. This means showing that your injuries would not have happened but for the negligence. In many cases, proving causation isn't a problem. But in some instances, causation is exceptionally hard to prove.
In most medical malpractice cases, a winning plaintiff (the party who files a lawsuit) can collect what the law calls "compensatory damages." As the name suggests, these damages are meant to compensate you for actual injuries you suffer because of the malpractice. Compensatory damages fall into two categories.
In rare cases, you might be able to collect punitive damages. These damages aren't intended to compensate you for your losses. Instead, they're awarded to punish a wrongdoer for extreme or willful misconduct. A number of states also limit (or prohibit) punitive damages, too.
If a patient dies because of medical malpractice, the patient's survivors can file a wrongful death lawsuit to recover:
Learn more about damages in medical malpractice lawsuits.
It depends on what those risks were. Your doctor must tell you about the serious risks involved with any proposed medication, procedure, or treatment so that you can decide whether to consent. In both medical and legal terms, this is called "informed consent."
Your doctor isn't obligated to tell you about every single risk—only the important ones. In determining what a doctor must disclose, states generally use one of two standards.
In some situations (like emergencies), a doctor isn't required to get informed consent before treating you. Learn more about informed consent and when it's required.
Probably not. As a general rule, a hospital isn't legally responsible for a doctor's medical malpractice if the doctor isn't an employee of the hospital. Most doctors aren't employees of the hospitals where they treat patients—they're independent contractors. There are several exceptions to this rule.
Learn more about when a hospital might be liable for a doctor's medical malpractice.
You might have malpractice claims against:
Nursing malpractice. The standard of care (discussed above) applies to nurses, too. If a nurse commits malpractice while caring for you, and if that malpractice causes you to suffer an injury, the nurse can be liable for malpractice.
Hospital liability. Hospitals are often (but not always) on the hook for a nurse's malpractice. The hospital might be legally responsible if:
Supervising doctor. The doctor who was caring for you might also be responsible for the nurse's actions if:
Learn more about nursing malpractice.
Many states have passed laws that limit, or "cap," the damages you can collect if you win your medical malpractice case. General or noneconomic damages for injuries like pain and suffering, emotional distress, loss of enjoyment of life, and similar losses are favorite cap targets. Punitive damages might also be limited, though they're rarely awarded in malpractice cases.
In addition to limiting your damages, cap laws also prohibit jurors from being told that the caps exist. They're instructed to award an injured plaintiff the full measure of all proven damages, unaware that the court will later reduce those damages to comply with state law.
Here's the bottom line: If your medical malpractice case involves severe or catastrophic injuries, your noneconomic damages are likely to be substantial. Damage caps will significantly decrease the value of your case. You'll need the help of an experienced malpractice lawyer to maximize the value of your claims.
If you have questions about a potential medical malpractice case, your best bet will be to consult with an experienced malpractice lawyer. Here's how to find the attorney who's right for you and your case.