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.
Questions
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:
- your provider was negligent
- you were injured, and
- your injuries were caused by your provider's negligence.
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.
I wouldn't have agreed to the procedure if I had known the risks associated with it. Can I sue my doctor?
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.
- Would another competent doctor have disclosed the risk?
- Would an ordinary, reasonable patient have made a different decision if the risk had been disclosed?
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.
If my doctor makes a mistake while treating me in a hospital, can I sue the hospital?
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.
- A hospital might be responsible for a doctor's medical malpractice if the hospital didn't make it clear to you that the doctor wasn't an employee. Hospitals usually avoid this problem by telling you about the doctor's independent contractor status in your admission forms.
- When you're treated in an emergency room, the hospital often doesn't have a chance to tell you about the doctor's independent contractor status. For this reason, a hospital might be responsible for an ER doctor's medical malpractice.
- In some states, a patient can sue a hospital for a doctor's medical malpractice if the hospital negligently gave staff privileges to an incompetent or dangerous doctor.
Learn more about when a hospital might be liable for a doctor's medical malpractice.
I was injured in a hospital when a nurse gave me the wrong drug. Who can I sue?
You might have malpractice claims against:
- the nurse
- the hospital, and
- the doctor who was supervising the nurse's care.
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:
- the nurse was a hospital employee
- the nurse was performing a job duty when you were injured, and
- a supervising doctor didn't properly supervise or control the nurse.
Supervising doctor. The doctor who was caring for you might also be responsible for the nurse's actions if:
- the doctor was present, and
- the doctor had the authority to supervise or control the nurse's actions to prevent the negligence.
Learn more about nursing malpractice.
My state limits the damages that can be collected in a medical malpractice case. What does this mean?
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.
Get help with your medical malpractice questions
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.
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