Medical Malpractice

Do I Have a Medical Malpractice Case?

By David Goguen, J.D., University of San Francisco School of Law
Understanding whether you have a valid claim means understanding when a medical error rises to the level of medical malpractice.

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When a doctor makes a mistake in diagnosis or treatment, it raises a number of concerns, first and foremost being the well-being of the patient and the impact of the error on his or her condition. Eventually, the incident may raise a different sort of red flag, when the patient asks whether the doctor’s mistake amounts to medical malpractice. The answer may be more complicated than you might expect. That’s the focus of this article: understanding when an error in the healthcare setting can lead to a valid malpractice claim.

What is Medical Malpractice?

There's a lot more to a viable medical malpractice case than merely a mistake on the part of a health care professional or facility.

Here’s an overview of the different elements that must be in place -- and that, when in dispute, must be established through evidence and testimony by the plaintiff and his or her legal team -- in order to bring a successful medical malpractice lawsuit:

  • the existence of a doctor-patient relationship
  • the provision of care (which includes decisions, treatment, and the failure to treat) that fell below the accepted medical standard of care (a “breach” of the standard of care that amounts to “medical negligence,” in the language of the law)
  • a causal connection between the care provider’s medical negligence and the patient’s harm, and
  • quantifiable harm (“damages”) to the patient as a result.

In some ways, defining medical malpractice means defining these elements, so let’s take a closer look at a few of them -- specifically, those upon which the success of a medical malpractice case typically hinge: the “medical standard of care” and the doctor’s (or other care provider’s) breach of that standard (“medical negligence”).

The Medical Standard of Care

The issue of the appropriate medical standard of care to apply is often one of the most contentious in a medical malpractice case, and proving this element is usually a two-pronged task that includes:

  • establishing the appropriate medical standard of care that should apply to the patient’s case, and
  • showing in detail exactly how the defendant (the doctor or other care provider) fell short of meeting that standard.

In a nutshell, the medical standard of care is the type and amount of skill and attention that a prudent, similarly-trained health care professional, in the same medical community as the defendant, would have provided to the patient. That’s a lot of “legalese,” but that’s because it’s a complex concept.

Basically, the (simplified) question here is, what are the accepted practices surrounding the medical procedure or course of treatment that led to the alleged mistake? And the answer is almost always provided through the testimony of the plaintiff’s expert medical witness(es), usually doctors who have expertise with the patient’s condition, and who practice medicine in the same geographic area as the defendant doctor.

Learn more about the medical expert's role in establishing liability, and why a medical malpractice lawsuit is often referred to as a "battle of the experts": How Do I Prove Medical Malpractice?

Medical Negligence

Next, the plaintiff’s team needs to establish how the medical standard of care was “breached,” meaning exactly how the defendant doctor fell short of meeting the standard when providing care to the patient. Again, it’s almost always the plaintiff’s medical expert who provides the key evidence, through detailed (and often quite complex) testimony -- painstakingly walking the jury through the plaintiff’s condition, the appropriate course of treatment or diagnosis methodology, and exactly what the doctor did (or did not do) at each stage of care.

It’s important to note here that, as the definition of “medical standard of care” indicates, an error may well occur in the treatment setting even as the doctor’s decisions and conduct remain in line with the medical standard of care. Perhaps the decision or the procedure was incredibly complex from a medical or practical standpoint -- maybe it even came with known risks that were properly disclosed to the patient, and the “error” was an offshoot of those risks.

Finally, It's not enough that your doctor made some sort of mistake. The plaintiff’s expert witness(es) will also need to prove a causal link between that mistake and measurable harm to the patient. In other words, it needs to be shown that were it not for the error, the patient would not have experienced a worsening of his or her health. Maybe the error resulted in unexpected complications or new health problems that now require additional medical treatment. Maybe the error was more of the diagnostic variety, and the defendant’s failure to identify a health problem means that a critical treatment window is now closed. In any event, unless the patient suffered some measure of harm because of the doctor’s error, there's no medical malpractice case.

Questions for Your Attorney

If you’re thinking about talking to an attorney about your potential medical malpractice case, keep in mind that you probably won’t need to worry about paying for representation at the outset. Most medical malpractice lawyers take cases on a contingency fee basis. Besides the fee agreement, here are a few other things you might want to ask about when you sit down to talk with an attorney:

  • I traveled to another state for medical treatment. Can I file a malpractice suit in my home state, or do I have to file in the state where I received treatment? Can you represent me in either state?
  • Does our state have "tort reform" laws that limit how much money I can get in a medical malpractice lawsuit?
  • Is there a time limit for filing a medical malpractice lawsuit? What if I didn’t know about my doctor’s mistake until years after I was treated?
Learn more about Choosing the Right Medical Malpractice Lawyer.

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