How to Identify If You Have a Medical Malpractice Case

When you visit a doctor or another type of qualified healthcare provider, you place your trust in their services. Even if they can’t provide the cure or relief you seek, you go with the reasonable expectation that they won’t cause you harm. Unfortunately, sometimes that faith is misplaced and patients suffer as a result.

If you were harmed by a medical professional, you might wonder whether you have the basis for a legal claim. Because medical malpractice can be a complex area of the law, determining the answer to your question can be challenging.


What Is Medical Malpractice?

In its simplest terms, the definition of medical malpractice is an act or omission by a duly authorized treatment provider that, a) does not comply with a reasonable standard of care, and b) causes harm to the victim.

The definition of a “reasonable standard of care” is not black and white. It can vary based on a variety of factors, including jurisdiction. Generally, however, a reasonable standard of care is the type of care that a similarly situated professional would deliver. In other words, would another doctor who had the same level of knowledge, education, and experience have done something different in the same situation?

It is important to understand that just because a doctor, nurse, etc. causes you harm, that doesn’t mean their actions necessarily constitute malpractice. Sometimes it takes a qualified legal professional—such as a medical malpractice attorney—to make that determination.

Who Can Commit Malpractice?

Any person who is authorized to deliver medically related treatment or care can be guilty of malpractice, as long as a formal provider/patient relationship has been established. If you schedule and attend an appointment with a physician, this relationship is established. However, if that same doctor gives you bad medical advice at a cocktail party, you likely won’t be able to pursue legal action.

Medical malpractice isn’t limited to doctors and nurses. Many other types of clinicians and treatment providers can commit this offense, including the following:

  • Nurse practitioners,
  • Physician’s assistants,
  • Anesthesiologists,
  • Phlebotomists,
  • Radiologists,
  • Pharmacists,
  • Dentists, and

Although malpractice claims are often filed against individual practitioners, you might also have a valid cause of action against a hospital, urgent care center, pharmacy, medical testing lab, residential care facility, etc.

What Are Some Common Types of Malpractice?

The Agency for Healthcare Research and Quality (AHRQ), a division of the U.S. Department of Health & Human Services, lists some of the most common medical malpractice events, which are as follows:

  • Surgery performed on the wrong patient;
  • Surgery performed on the wrong body part;
  • Foreign objects left in a patient after surgery;
  • Childbirth errors;
  • Medication errors; and
  • Diagnostic errors.

The National Academy of Medicine (NAM) reports that more than 30 million diagnostic errors occur every year in the U.S. Some 80,000 of these incidents result in the patient’s death or severe disability. Missed diagnoses and delayed diagnoses contribute even further to this pervasive problem.

Communication errors—including communication between providers and provider to patient communication—are another common type of malpractice event. Even a patient’s sex, race, or ethnicity can put them at greater risk of being the victim of malpractice. In fact, racial disparity in healthcare remains a disturbing yet common problem throughout the United States.

How Long Do You Have to Pursue a Medical Malpractice Claim?

The time you have to file a legal claim for malpractice depends on your location. Each state establishes its own statutes of limitations for medical malpractice, ranging from 1 to 5 years. In most states, you have only two years from the date of your injury to file a civil lawsuit. If you don’t act within that period, you could lose your right to recover compensation.

The best way to determine how long you have to file a claim is to talk to an experienced legal professional in your area. For example, if your injury occurred in the Sunshine State, a Florida medical malpractice law firm will best understand the statute of limitations that applies in your case. Florida also has some of the most complex and onerous malpractice laws, requiring victims to notify the doctor in advance of their intent to pursue legal action.

What Is Needed to Prove a Medical Malpractice Case?

Like Florida, many states have begun to implement more stringent requirements for taking legal action for malpractice. Ultimately, however, proving any malpractice case requires demonstrating four key legal elements.

Duty of Care. Medical practitioners have a legal obligation (a duty) to provide a reasonable standard of care to their patients.

Breach of Duty. Medical practitioners who fail to uphold this obligation to provide reasonable care are said to have breached their duty.

Causation. If a patient sustained actual harm as a result of the breach of duty, the practitioner has liability for those damages.

Actual Damages. The victim’s damages must be demonstrable and quantifiable.

Unfortunately, doctors do not often admit fault for malpractice, and that means the onus falls on the patient and their attorney to prove the elements of negligence. Attorneys use a variety of resources to prove malpractice, including medical records and testimony from subject matter experts.

Do Malpractice Claims Have to Go to Court?

Although some malpractice cases do end up in a trial, most can be settled out of court. Accepting a settlement from the doctor’s malpractice insurance company can be the preferable option for many victims. A settlement means you don’t have to go through the time, hassle, and cost of a trial. Settlements typically also take less time to wrap up than lawsuits.

Should You Get a Medical Malpractice Lawyer?

Although no state requires malpractice victims to have a lawyer to pursue a claim, having an experienced attorney on your side can provide several distinct advantages. Experienced attorneys understand the complexities of proving malpractice and have the resources to build a persuasive case. Many medical malpractice lawyers accept cases on a contingency basis also, which means that you don’t owe any legal fees until and unless the lawyer recovers compensation on your behalf.

Before you make any decisions about your case, consider taking advantage of the free consultation offered by most personal injury lawyers. This is the best way to determine whether you have a valid medical malpractice case and, if so, what your claim’s value might be.

Comments 1

  1. Susan Schuler says:

    After reading this document I am outraged in the fact that I had a crystal clear case of medical malpractice in regards to a wrong diagnosis and an unnecessary surgery which ended up causing me to have 17 more surgeries in less than a year to try and repair the damage that was done to me because of it only to loose use of my right arm and hand because all the surgeries were unsuccessful. It caused me irreversible damage, loss of my job, loss of my home, my marriage and the list goes on. Only to be told by attorney’s that I approached broken mentally and financially broke that there was no sense in trying to sue the provider because they were just to large with too many attorneys and I could not afford it anyways because I was out of a job now on disability because of it. I went from a 6 figure job in my 40’s to being forced to live on 1700.00 a month disability Loosing everything. For them to take everything away from me and then to be turned down by attorneys because it was against the ever famous Mayo Clinic because I was without funds to pay an attorney is unbelievable to me. It was their wrongdoing not mine I should have been able to fight them for I would have won and any attorney could have gotten paid at that point. Now I am practically homeless and alone. everyone should be ashamed of themselves for taking on the ridiculous whiplash easy cases and should have taken pride in representing a true victim!!

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