A nurse makes a rude comment about your weight. A surgeon rushes through an explanation of your upcoming operation, preventing you from piping up with a question. Your doctor’s awful “bedside manner” makes TV’s Gregory House seem sweet and sincere. Unsatisfactory treatment? Most definitely. Malpractice? Probably not. If you’ve ever wondered what constitutes medical malpractice, you’ve come to the right place.
What Constitutes Medical Malpractice?
Let’s open the dictionary for a minute and consider the “textbook” definition of medical malpractice.
Medical malpractice is when a medical professional breaches the “standard of care” when treating a patient. Their action or inaction causes harm or even death.
What does it mean to breach the “standard of care”? It means the treatment your doctor provided wasn’t “up to par” with what any trained physician would do when faced with the same situation.
That may sound a bit vague. It’s why so many patients wonder what constitutes medical malpractice. They’re confused about when a doctor’s actions cross that “license to sue” line.
Failing to Meet the Standard of Care
Here are some examples of what failing to meet the “standard” can look like:
- When a doctor diagnoses a patient incorrectly – failure to give a correct diagnosis. Misdiagnosis – a doctor overlooks chronic fatigue syndrome, for example, and diagnoses the patient with depression.
- Delayed treatment or failure to treat.
- Surgical errors like leaving an instrument inside a person’s body, or operating on the wrong body part.
- Anesthesia mistakes.
- Writing the wrong prescription.
- Administering too much or too little medicine.
- Letting a patient go home from the hospital too early.
- Misreading lab test results.
- Failing to record a patient’s history.
- Breaching doctor–patient confidentiality.
All the circumstances above could inflict major harm on a patient. Or, they might not. For someone to be able to bring a claim of medical malpractice, the doctor’s actions have to have caused some kind of injury. A few other elements are needed to make a case successful as well, which we’ll discuss below.
Do I Have A Case? And can you Sue a Hospital for Misdiagnosis/Incorrect Diagnosis/Failure to Diagnose?
Say you undergo surgery to remove a tumor. A few days after recovery, you feel a strange, unexplained pain near the surgical site. You’re positive the surgeon did something wrong. Maybe they left a piece of gauze inside you. Or worse…a scalpel!
Your first thought might be to sue your surgeon. But you can’t bring a malpractice case on a “maybe”. You have to show proof. In this case, you’d need evidence that there’s an unwanted stowaway in your abdominal cavity. So you would get an X-ray—an instant smoking gun on silver emulsion coated film.
In most medical malpractice cases, showing the connection between a doctor’s actions and an injury isn’t as simple as providing an X-ray. That’s why it’s essential to hire a malpractice attorney who has access to medical experts. These experts can review your records and give opinions to help your case.
Besides proof of your injury, here’s what else you need to show with your malpractice claim:
- The defendant’s action or inaction was negligent as defined by law.
- The defendant’s negligence caused your injury. Without negligence, you wouldn’t have been injured.
- You suffered loss or damage as a result of the negligence and injury. These are the damages you’ll sue to recover. Next, we’ll take a look at some specific malpractice damages.
Now, a surgeon leaving a scalpel inside you is pretty obviously malpractice – but what about medical misdiagnosis or a delayed diagnosis? If you’re injured because your doctor failed to diagnose you when a reasonably competent doctor would have, or gave a delayed diagnosis or wrong diagnosis, you can file a medical malpractice lawsuit against them.
What Are Medical Malpractice Damages?
A common misconception about what constitutes medical malpractice is that it only involves bodily injuries. You can recover damages for other types of injuries and losses as well.
For example, this plaintiff, who underwent a colonoscopy, wasn’t injured by his doctors. But his phone accidentally recorded the anesthesiologist’s remarks during the procedure. Her cruel comments left him with emotional scars.
Another example of what constitutes medical malpractice damages is loss of companionship because of wrongful death. No amount of money can make up for losing a loved one to negligent behavior. But defendants can recover large sums from plaintiffs as “punishment” for their actions.
Other types of losses in malpractice cases include:
- Loss of income
- Pain and suffering
- Lost quality of life
- Emotional distress
- Loss of nurturing (for young children who have lost a parent)
- Cost of full-time medical care
- Medical equipment costs
- Loss of companionship
Now that we’ve discussed the types of damages you can sue for, let’s go over the most common medical malpractice lawsuits.
Common Medical Malpractice Lawsuits
Misdiagnosis or Delayed Diagnosis
This type of medical malpractice claim happens when the doctor fails to diagnose a condition, or makes an incorrect diagnosis that leads to the wrong treatment or a delay in treatment.
These types of medical errors include operating on the wrong body part and making surgical errors that cause injury or death. Leaving a foreign object inside a patient is more than enough of a reason to sue a doctor, of course. And it’s a surgical error that’s far more common than it should be.
Birth injuries can happen during labor and throughout the delivery process. A doctor may use forceps incorrectly, for example, or induce labor when it’s not necessary, or use excessive force during delivery.
Administering too much or too little anesthesia can be a devastating error. Other anesthesia errors include failing to monitor the patient’s vital signs properly during the procedure, and using defective equipment.
This includes prescribing the wrong medication or wrong dosage, and administering medication incorrectly. A doctor might fail to consider a patient’s allergies, or current medication, for example.
And that finally brings us to the question…
Should You Sue For Medical Malpractice?
Understanding what constitutes malpractice and how to get compensation can be confusing. But that doesn’t mean you shouldn’t try! And it all starts with contacting an experienced medical malpractice lawyer.
Did you know you can speak with a medical malpractice attorney cost-free to find out if you have a case? Contact Hampton & King’s medical malpractice team here to get started.
Medical Malpractice FAQs
How do you identify malpractice?
If you believe your doctor failed to provide a reasonable standard of care, and you’ve become the victim of malpractice, these are the things you need to show legally. First, that you were in a professional doctor-patient relationship with a medical professional who owed you a standard of care. Second, that this professional breached that standard of care. Third, you were injured as a result. And finally, this resulted in damages.
What is medical negligence?
When a medical provider fails to uphold the proper standard of care in the doctor-patient relationship, it’s called medical negligence. It’s different from malpractice, as malpractice is specifically negligence by a licensed healthcare provider. Negligence isn’t always malpractice, but malpractice is always a form of negligence.
What is the statute of limitations on medical malpractice in most states?
It’s 2 years in most states and in most cases, including Texas, Florida, Colorado, Kansas, Utah, and many others. Generally, the time limit for filing a medical malpractice lawsuit is 1 to 3 years from the day you’re injured (or the day you discover your injury). But always check your state, as these laws are subject to change.
How are damages negotiated?
You’ll most likely negotiate a settlement with the offending party. But if they refuse to offer a settlement, you can seek compensation by taking them to court. This can be longer, but it can also result in a larger amount of compensation.
Who pays for malpractice and negligence?
The hospital or doctor’s insurance company, in most cases. And you can choose to receive the money in one lump sum, or in monthly or yearly installments.
What is it called when a doctor makes a mistake?
When a doctor makes a mistake and hurts someone, it’s called “medical malpractice.” This happens when a doctor or other healthcare professional doesn’t provide the right care or makes a bad decision that leads to harm.
Can you sue a doctor for misdiagnosis (or another medical professional)?
Yes, you can sue a doctor who misdiagnosed you. If their mistake led to harm or made your condition worse, you might have a case for medical malpractice. It’s important to talk to a lawyer who knows about medical cases to understand your options.
What are the most misdiagnosed diseases?
One of the most misdiagnosed diseases is cancer. Often, its symptoms can look like other conditions, making it hard for doctors to diagnose it right away. Other commonly misdiagnosed conditions include Lyme disease and thyroid problems.
How do you prove misdiagnosis?
To prove misdiagnosis, you need to show that the doctor made a mistake and that this mistake hurt you. This usually means getting medical records, showing what a competent doctor would have done differently, and explaining how the misdiagnosis caused harm.
How much can you get compensated for in a medical malpractice lawsuit (for misdiagnosis)?
The amount of money you can get in a misdiagnosis lawsuit varies. It depends on how much harm the misdiagnosis caused, like extra medical bills, lost wages, or pain and suffering. Each medical malpractice case is different, so the compensation can range from small amounts to very large sums.