Medical Malpractice

Medical Malpractice FAQs

Reviewed by David Goguen, J.D., University of San Francisco School of Law
Get answers to some of the most common questions related to the elements of medical malpractices, challenges that plaintiffs face in these kinds of lawsuits, and much more.

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  1. Are nursing home injury/abuse cases considered medical malpractice?
  2. Can a medical malpractice case be reopened after it has settled?
  3. Can you file a medical malpractice lawsuit against someone other than a doctor?
  4. Can you sue for what might have happened during a medical procedure?
  5. Do most medical malpractice cases go to trial?
  6. How can I afford to hire a medical malpractice attorney to represent me?
  7. How do I know if I have a medical malpractice case?
  8. Is a misdiagnosis considered medical malpractice?
  9. Is there a minimum or maximum amount that can be recovered in a medical malpractice lawsuit?
  10. What does "preponderance of the evidence" mean?
  11. What is "contributory negligence"?
  12. What is "informed consent?"
  13. What is the statute of limitations for a medical malpractice suit?
  14. Why do attorneys turn down medical malpractice cases?


Q: Are nursing home injury/abuse cases considered medical malpractice?


A: Not usually, unless the resident was receiving medical treatment at the time, not just residence-based care. While harm resulting from injury or abuse in the nursing/long term care setting can certainly form the basis of a lawsuit, medical malpractice claims typically require the existence of a doctor-patient relationship and the provision of sub-standard care. If the resident is injured in a fall, or as a result of an intentional act by a caregiver, that wouldn't be considered medical malpractice.


Q: Can a medical malpractice case be reopened after it has settled?


A: No. Whenever you settle any kind of civil case, you sign a release in which you agree to forgo any future legal action whatsoever in connection with the underlying events. The same goes for medical malpractice lawsuits. That's why it's crucial to make sure you understand the full extent of your losses before you agree to a settlement. Once you sign the release, there's no going back and asking for more compensation.


Q: Can you file a medical malpractice lawsuit against someone other than a doctor?


A: A medical malpractice suit can be brought against most licensed health care professionals. This includes physicians, specialists, emergency room doctors, registered nurses, anesthesiologists, dentists, pharmacists, optometrists, and physical therapists, to name just a few.


Q: Can you sue for what might have happened during a medical procedure?


A: No. While it may be distressing to learn that something went wrong during your medical procedure, even an error that might have resulted in permanent injury or death if it wasn't caught and remedied right away, unless the error actually resulted in some kind of harm (a worsening of your condition, a follow-up procedure) you don't have a valid medical malpractice case. Learn more: Do I Have a Medical Malpractice Case?


Q: Do most medical malpractice cases go to trial?


A: No. The majority of medical malpractice lawsuits (around 93 percent, according to the U.S. Bureau of Justice Statistics) reach settlement before a verdict is reached at trial. But medical malpractice lawsuits do reach the trial phase a little more often the most injury-related cases, since health care professionals (and their insurers) tend to dig in their heels and demonstrate more of a willingness to let things play out in court.


Q: How can I afford to hire a medical malpractice attorney to represent me?


A: Most law firms will accept a medical malpractice case on a contingency fee basis. That means you don't have to pay your attorney a representation fee unless the case reaches a favorable outcome for you, meaning you receive a settlement (before trial) or a jury rules in your favor (after trial). If a favorable outcome is reached, the attorney will receive an agreed-upon percentage of your settlement or judgment (usually around 33 percent). You may have to pay expenses associated with your case, regardless of whether you win or lose, so be sure you understand the fine print of any contract you sign.


Q: How do I know if I have a medical malpractice case?


A:The first thing to know is that a negative medical outcome doesn't automatically amount to medical malpractice. Even when a health care professional acts with the highest level of expertise and care, things can go wrong. Usually, in order to make a viable case for malpractice, you need to first establish the applicable standard of care that was appropriate to the circumstances. That means the level of care and skill that your doctor (or whoever harmed you) should have acted with, based on accepted medical practices in the same community. Next, you need to show exactly how the defendant deviated from that standard in treating you, and precisely how you were harmed by the provision of sub-standard care. In most medical malpractice lawsuits, all of these elements need to be established by a qualified expert medical witness. More: How Do I Prove Medical Malpractice?


Q: Is a misdiagnosis considered malpractice?


A:Not necessarily. It depends on the information available to your doctor at the time your diagnosis was made, and the steps he or she took (or didn't take) in reaching a conclusion as to your condition. All of this must be weighed against the applicable medical standard of care, meaning the level of care that a similarly-trained health care professional would have provided. And if there was a misdiagnosis that fell below the applicable standard of care, you need to show that you ended up suffering some kind of harm as a result. More: Do I Have a Medical Malpractice Case?


Q: Is there a minimum or maximum amount that can be recovered in a medical malpractice lawsuit?


A:There is no minimum amount that a plaintiff must be awarded in a medical malpractice lawsuit, but a number of states have placed "caps" on the maximum amount of compensation a plaintiff can be awarded when it comes to certain types of losses (or "damages"). But these caps usually apply only to non-economic damages like "pain and suffering" and other more subjective or experiential consequences of the malpractice. The caps don't usually apply to economic damages like past and future medical treatment made necessary by the malpractice, or lost income and lost ability to earn an income.


Q: What does "preponderance of the evidence" mean?


A:This is the level of proof that is required in a civil trial in order to be successful in a medical malpractice lawsuit. The plaintiff must show, by a "preponderance of the evidence," that the defendant health care professional provided sub-standard care to the plaintiff, and that the plaintiff suffered harm as a result. It basically means that that the evidence shows it is more probable than not that the plaintiff has proved his or her case. Compare a civil lawsuit's "preponderance of the evidence" standard with a criminal trial's requirement that a defendant's guilt must be established "beyond a reasonable doubt," which is a much tougher burden of proof to meet.


Q: What is "contributory negligence"?


A:"Contributory negligence" is a legal concept that applies in an injury-related lawsuit, when the plaintiff's own failure to exercise reasonable care actually played a role in causing or contributing to his or her own injuries, or the extent of those injuries. The concept of contributory negligence can come up in a medical malpractice case, meaning the defendant health care professional (through his or her insurer or lawyer) could argue that the plaintiff's own conduct (or failure to act) was a factor in the worsening of his or her health condition. For example, if the defendant can point to a string of missed appointments, or the plaintiff's failure to consult a specialist after being instructed to do so, this could amount to contributory negligence. But it's important to note here that even where contributory negligence is established, in most states it doesn't eliminate the defendant's liability -- it merely reduces it.


Q: What is "informed consent?"


A:Before a doctor performs a medical procedure or proceeds on a course of treatment, he or she is required to advise the patient of the potential outcomes and reasonably knowable negative consequences, including side effects and complications. The provision of this information is known as "informed consent," and if this kind of conversation doesn't take place, it could amount to medical malpractice if the patient suffers harm as a result of treatment that he or she wouldn't have agreed to if armed with all the necessary facts. It's important to note that informed consent isn't required in all treatment scenarios, including when an unconscious patient is receiving emergency services. Learn more about Lack of Informed Consent.


Q: What is the statute of limitations for a medical malpractice lawsuit?


A: A statute of limitations is a state law that puts a time limit on a potential plaintiff's right to file a lawsuit. Most states have a separate statute of limitations for medical malpractice lawsuits. The time limit varies among states (usually it's somewhere around two and four years), and in most states there are circumstances that can suspend or pause the running of the statute of limitations "clock," such as where the plaintiff could not have discovered the occurrence of the malpractice, and where the injured patient is a minor. Talk to an experienced medical malpractice attorney for details on the statute of limitations deadline in your state.


Q: Why do attorneys turn down medical malpractice cases?


A: There are a number of reasons why an attorney won't take (or won't pursue) a medical malpractice case. Perhaps state law requires a medical expert to offer an opinion that there has been malpractice, but the attorney can't find a qualified expert who will provide that testimony (many states require this kind of "affidavit of merit right at the outset of a medical malpractice case, either filed along with the initial complaint, or shortly afterward).

Maybe the attorney has determined that the cost of bringing the case to trial would come close to or even exceed the perceived dollar value of the case. It is generally very expensive to obtain the expert testimony necessary to win a malpractice case, and those costs tend to skyrocket if the case goes all the way to trial. And, these days, insurance companies are less likely to settle and more willing to proceed to trial. So, many a lawyer will conclude that it's not economically feasible to bring what may be a "good" liability case to court.

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This article was verified by:
Jeffrey M. Rich | May 11, 2015
30 Vesey Street
New York,NY
10007
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