Medical Malpractice FAQ

A look at what you must prove to win a medical malpractice case, common treatment errors, when you can sue a hospital for malpractice, and more.

Updated by , Attorney University of Missouri–Kansas City School of Law
Updated 10/02/2023

What are the most common kinds of medical errors in medical malpractice cases?

Medical errors that lead to medical malpractice claims typically fall into one of these categories:

  • failure to diagnose, delayed diagnosis, or misdiagnosis of an illness, injury, or condition
  • failure to obtain a complete medical history
  • failure to order appropriate and necessary diagnostic tests, studies, or procedures
  • prescribing or giving the wrong drug, or the wrong dosage of the correct drug
  • careless performance of a surgical or medical procedure
  • failure to treat or improper treatment of an illness, injury, or condition
  • improperly delegating authority or responsibility for a procedure to a person who lacks the necessary education, training, or experience
  • failure to warn the patient of the known and serious risks of a medication, test, study, or procedure
  • failure to ensure proper supervision of an impaired patient, or a patient with known or suspected severe cognitive or emotional deficits, and
  • prematurely discharging a patient from care.

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.

I keep hearing about the "standard of care" or the "duty of care." Are they the same? What do they mean?

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.

What do I have to prove to win a medical 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:

  • the standard of care that your provider should have met, and
  • how your provider "breached," or failed to meet, that standard of care.

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.

What kinds of compensation (money damages) can I collect in a medical malpractice lawsuit?

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.

  • Special damages. Special damages, sometimes called "economic" damages, generally include losses for which you're out-of-pocket (even if you're reimbursed by insurance). Things like your medical bills, lost income due to time missed at work, and amounts you have to pay others for housework or yard maintenance qualify as special damages.
  • General damages. Also known as "noneconomic" damages, general damages are meant to compensate you for injuries like pain and suffering, disfigurement, loss of enjoyment of life, and more. Many states have passed laws limiting the general damages you can collect in a medical malpractice case (see below).

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:

  • damages that occurred from the time of the malpractice up until the patient's death, and
  • the family's future economic loss due to the patient's death.

Learn more about damages in medical malpractice lawsuits.

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