For patients who have suffered an injury due to medical malpractice, three kinds of damages are usually available through a lawsuit:
If a patient died as a result of medical malpractice, the patient's heirs may recover for 1) damages that occurred from the time of the malpractice up until the patient's death, and 2) the family's future economic loss due to the patient's death. To learn more about damages in medical malpractice lawsuits, see Nolo's article Damages in Medical Malpractice Cases.
It depends on what those risks were. Doctors must fully inform their patients about serious risks involved in any proposed medical procedure or treatment so that the patient can decide whether to go forward, in light of the danger. In both medical and legal terminology, this is called "informed consent." However, doctors don't have to inform patients about every single risk involved in a procedure, only the important ones. In determining what a doctor must disclose in terms of the risk linked to certain treatment, states generally use one of two standards:
In some situations (like emergencies), a doctor is not required to get informed consent before treating a patient. To learn more about what constitutes informed consent and when it is required, see Nolo's article Medical Malpractice: Informed Consent.
Probably not. For the most part, hospitals are not responsible for a doctor's medical malpractice if the doctor is not an employee of the hospital (most doctors are independent contractors and not employees). There are several exceptions to this rule.
To learn more about when hospitals might be liable for a doctor's medical malpractice, see Nolo's article Medical Malpractice: When Can Patients Sue a Hospital for Negligence?
Nursing malpractice happens when a nurse does not fulfill duties in a way that a normally competent nurse in the same situation would -- and that negligence injures the patient. As in medical malpractice, however, not every mistake or mishap rises to the level of negligence.
If a nurse commits malpractice while caring for a patient, hospitals are often (but not always) on the hook. A hospital may be legally and financially responsible for a nurse's negligence if:
An attending doctor may also be responsible for the nurse's actions if:
To learn more about what types of actions constitute nursing negligence, and when the hospital or attending doctor is responsible, see Nolo's article Nursing Malpractice.
In recent years, doctor groups, insurance companies, and some patients have criticized medical malpractice litigation, arguing that it's expensive, unpredictable, and inefficient. These critics claim that medical malpractice lawsuits have caused doctor and hospital liability insurance rates to skyrocket, which in turn drives up health care costs and forces some doctors to stop practicing (or avoid performing certain procedures like delivering babies). Reformers argue that the threat of malpractice claims also increases the use of "defensive medicine," placing additional costs and burdens on the health care system.
Those in favor of preserving the status quo of medical malpractice law counter that the recent surge in medical malpractice litigation is tied to an increase in treatment errors by doctors and other caregivers. They point out that liability insurance premiums (once adjusted for inflation) are lower than the previous decade for all but a few doctors that practice in certain specialty areas. In addition, they argue that many factors contribute to liability insurance rate increases and the higher cost of healthcare -- and to blame it all on medical malpractice litigation is to ignore the true reasons for the health care crisis in our nation.
Ideas for reforming the medical malpractice litigation system are as varied as they are numerous. Some of the major proposals that have emerged in recent years include:
For more information on personal injury claims, see How to Win Your Personal Injury Claim, by Attorney Joesph L. Matthews (Nolo).
Medical malpractice occurs when a patient is harmed because a doctor (or other medical professional) failed to perform competently under accepted standards of medical care. In order to prove medical malpractice, it must be shown that the doctor was negligent in some way -- that is, not reasonably skillful and careful in treating the patient. A doctor's negligence might be established by proof that the doctor:
There are other elements that must be established in a medical malpractice claim -- including the existence of a doctor-patient relationship and damages linked to a resulting injury. To learn more about medical malpractice claims (including what types of actions constitute malpractice), see Nolo's article Medical Malpractice Basics.