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:
- Misdiagnosis or failure to diagnose
- 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?
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 medical malpractice damages.
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 medical negligence. 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 is 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 another 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 medical malpractice and how to get compensation can be confusing. But that doesn’t mean you shouldn’t try!
Did you know you can speak with a lawyer cost-free and find out if you have a case? Contact Hampton & King’s medical malpractice team here to get started.