Medical Malpractice: How Will the Malpractice Details Affect My Claim?


If you experienced medical problems because of a mistake made by a health professional or medical facility, you might be thinking of filing a medical malpractice lawsuit. And you’re probably wondering if you have any chance of receiving compensation for the additional medical bills and other losses you suffered. We surveyed readers across the U.S. who recently filed medical malpractice claims, to learn about what they experienced and how their cases turned out. Here’s some of what they told us.

Common Medical Errors

The three most common medical errors that our readers reported were:

  • a mistake during surgery or another type of medical procedure
  • an incorrect diagnosis or delayed diagnosis and treatment, and
  • reactions or complications related to medication.

When we looked more closely at the outcomes of those cases, we saw that readers who experienced medication-related problems had a much greater chance of receiving a “payout” (an out-of-court settlement or an award after trial) than those who reported diagnostic problems or surgical mistakes. More than a quarter of readers with medication-related malpractice claims ultimately received compensation, compared to 5% of those with claims related to diagnostic errors.

Proving Medical Errors

In order to make sense of these results, it helps to look at the big picture. All patients face an uphill battle with medical malpractice claims, which are notoriously complicated, difficult to prove, and expensive to pursue. (For details, see our article on the likelihood of settlements or award in medical malpractice cases.) A medical mistake amounts to malpractice only if:

  • the health professional or facility fell short of providing care and expertise in line with accepted medical standards, and
  • that failure (“negligence” in legalese) caused the patient harm.

In theory, the type of medical mistake shouldn’t affect your chances of receiving a payout in a medical malpractice case. Strong evidence of negligence is the most important factor in your favor. But it may be easier to prove negligence with some types of medical errors than with others. For instance, even skilled, careful doctors sometimes miss a proper diagnosis. The trick is proving that other doctors with similar expertise wouldn’t have made that same mistake given the circumstances. With misdiagnosis, it often comes down to whose medical expert is more convincing in the eyes of the jury, since liability is often such a close call. (To learn more, see our article on medical malpractice and diagnostic errors.)

In contrast, it may be relatively easy to show negligence if you were given the wrong dose of a medication, or if a dangerous drug interaction was ignored or overlooked.

Different Outcomes Against Different Defendants

Our survey also showed that the type of defendant who made the error (the health professional or facility on the “other side” of your medical malpractice claim) seemed to make a difference in the likelihood of a successful outcome. Only 4% of readers with claims against doctors (including specialists, surgeons, and anesthesiologists) received a settlement or award—significantly lower than the overall likelihood of success (12%). Those who had claims against hospitals, HMOs, and doctors’ groups didn’t fare much better. When we looked at the readers who claimed that other types of health professionals (including nurses, dentists, pharmacists, and physical therapists) made a mistake, we saw a different picture: More than a quarter of these patients received payouts.

Again, the type of defendant shouldn’t theoretically change your chances of receiving a settlement or award. But if we look back at our survey results on types of medical errors and claim outcomes, recall that medication-related claims saw the highest percentage of favorable outcomes. And since nurses, pharmacists, and other non-physician care providers are often charged with filling and administering medication, there might be a connection here. Also, research shows that jurors tend to give physicians the benefit of the doubt when both sides’ experts seem convincing. (And it stands to reason that insurers know that when they’re making settlement offers.)

The Role of Medical Malpractice Attorneys

Finally, when you’re looking at these results, keep in mind that the readers who participated in this survey had come to our websites to find information about medical malpractice claims, and to look for a lawyer. It may be that patients with the strongest cases—and better chances of getting a payout—didn’t participate in the survey because they were quickly able to find a lawyer elsewhere. And our survey showed that readers with attorneys were nearly twice as likely to receive a payout as those without legal representation. (For more on that issue, see our articles on increasing your chances of success with a medical malpractice claim and finding a medical malpractice lawyer.)

About This Report

The data referenced above is from Martindale-Nolo Research's 2017 medical malpractice study, which analyzed survey responses from readers who had medical malpractice claims and had researched hiring a lawyer. The names of any quoted readers have been changed to protect their privacy.

Get Professional Help

Find a Medical Malpractice lawyer
Practice Area:
Zip Code:
How It Works
  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys

Get the compensation you deserve

We've helped 175 clients find attorneys today

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you