Medical Malpractice

Medical malpractice is a legal term that refers to negligence by an act, or failure to act, by a doctor or other healthcare provider. When a medical professional’s treatment fails to meet the accepted standard within the medical community, and it causes injury to, or death of, the patient, it is considered to be malpractice. Medical malpractice is a very serious charge, though the laws governing it vary depending on the jurisdiction. To explore this concept, consider the following medical malpractice definition.

Definition of Medical Malpractice


  1. The failure of a medical professional to exercise an accepted level of skill or learning in rendering treatment, which results in injury, loss, or damage to the patient.
  2. A dereliction of professional duty by a physician or other medical professional, through despicable ignorance, gross negligence, or criminal intent.


1665-1675 English

What is Medical Malpractice

When people seek medical treatment, they expect a high level of care by someone who has been properly educated in the field, and to feel better after being treated. Unfortunately, it does not always turn out that way, as mistakes happen, even in medical settings. When a doctor, nurse, or other medical professional fails to provide a patient an adequate level of care, both in diagnosing the problem, and in treating it appropriately, and that failure causes harm to the patient, he or she can be held liable for malpractice.

Types of Medical Malpractice

There are many errors that may occur in medical treatment, some by sheer mistake or the difficulty in determining what ails a patient in some circumstances. Other errors, however, happen when medical professionals fail to pay close attention, don’t put enough thought and effort into correctly diagnosing a patient’s condition, or when inattention or neglect lead to the wrong treatment. Unlike similar errors made by a plumber, mistakes made by a doctor may lead to serious injury or even death of a patient.

With that in mind, simple mistakes, or patients unhappy with the results of their treatment do not necessarily add up to malpractice. In order to be successful in claiming medical malpractice, negligence must have occurred. In order to determine whether a mistake lends a valid reason for a medical malpractice lawsuit, the mistake of the doctor is compared to how other competent doctors would have handled the same situation. If another reasonable doctor, knowing the same facts, would have not made the same error, the treating doctor is liable for medical malpractice. Some of the most common types of medical malpractice include the following:

Misdiagnosis and Delayed Diagnosis

Misdiagnosis and delayed diagnosis make up the largest number of medical malpractice complaints. When a medical professional fails to diagnose a serious condition, or pronounces an incorrect diagnosis for an extended length of time, the patient may not receive the correct treatment, which may result in serious deterioration, or even death.

Example of medical malpractice by delayed diagnosis:

John sees his family doctor for a sore throat. John’s doctor tells him his sore throat is due to sinus drainage, and nothing more, and he prescribes a nasal spray to treat this. When the problem does not improve after treatment, John returns for several visits in an attempt to find relief, though his doctor continues to prescribe different medications for sinus congestion. Finally, John seeks the advice of an ear, nose, and throat (an “ENT”) specialist.

The new doctor examines John, and immediately suspects cancer. He orders the necessary tests, then diagnoses John with state III throat cancer, based on the results and his professional experience. If John’s family doctor had diagnosed him properly, or had referred John to a specialist sooner, after treatment proved ineffective, John’s chances of survival would have been much greater.

Childbirth Injuries

Mistakes made during childbirth can cause serious injuries to the baby, or even death. Childbirth injuries caused by the negligence of a healthcare professional during, or just after, childbirth lead to a large number of medical malpractice claims in the U.S. Common childbirth injuries caused by such mistakes include brain injuries, broken bones, and damage to nerves. Many of these injuries can lead to lifelong problems, or even disability for the child. Childbirth injuries can occur if the doctor fails to anticipate complications, fails to respond to fetal distress, or fails to order a cesarean section when it is appropriate.

Not all problems a newborn baby might have are caused by malpractice, as many deformities or medical conditions can be caused during pregnancy, or be due to a genetic disorder. A doctor may be liable for certain problems caused during pregnancy, if he fails to provide proper care and treatment to the mother, such as failing to diagnose a disease in the mother than can be transmitted to the fetus.

Surgical Mistakes

Surgical mistakes are an unfortunate occurrence in operating rooms across the country. Errors may be caused by the negligence of a surgeon during the procedure, such as leaving a surgical instrument in the body, operating on the wrong body part, or even performing one patient’s operation on the wrong patient. Surgical mistakes carry over into post-operative, or “recovery,” care, where negligent nursing staff may cause complications that lead to serious injury.

Anesthesia Mistakes

Anesthesia mistakes can be very dangerous, possibly resulting in severe injuries, such as brain damage, or even in the patient’s death. An anesthesiologist, or other anesthesia specialist, may be liable for medical malpractice if he:

  • Fails to learn patient’s medical history
  • Fails to inform the patient of the risks associated with anesthesia, including death
  • Gives too much, or the wrong type of anesthesia
  • Fails to monitor the patient while under anesthesia
  • Fails to intubate the patient properly (place the breathing tube properly into the patient’s airway)
  • Uses defective equipment

Medication Errors

Every year, a surprisingly large number of patients suffer harm due to medication errors. These errors might be in the form of the initial prescription for the drug, or in the method of administration by healthcare professionals. Medication errors that can lead to medical malpractice liability include:

  • The wrong medication is prescribed
  • The medication is prescribed in the wrong dosage
  • The medication is administered in the wrong dosage, or by the wrong route

When medication errors are made, there is a risk of the patient’s condition not being improved, as well as the possibility of causing additional symptoms, injury, or even death.

Elements of a Medical Malpractice Claim

When a patient believes he has been the victim of medical error or negligence, and wishes to file a civil lawsuit, he must prove certain elements of a medical malpractice claim. If any of these basic elements are not proven, success in the claim is less likely. Required elements of a medical malpractice claim include:

A Doctor-Patient Relationship Existed

The patient must prove that a doctor-patient relationship existed at the time of the injury. This means that the doctor was hired by the patient, and that the doctor agreed to treat the patient. Once the doctor begins treating the patient, creating records of treatment, it becomes easy to prove the doctor-patient relationship.

The Doctor was Negligent

Many patients end up unhappy with the results of medical treatment for a variety of reasons. Fortunately for the medical community, an unhappy patient does not mean the doctor was negligent. In order to meet this basic element of a medical malpractice claim, the patient must prove the doctor or other healthcare worker was negligent in connection with his diagnosis or treatment. He must also prove that the doctor failed to act in the manner another competent doctor would have acted in the same situation.

The Negligence Caused the Injury

Since medical care often involves care of a patient that is already injured or sick, it can be difficult to prove that the negligence caused the injury. For instance, if a patient dies from lung cancer, and the doctor is accused of negligent care, it can be hard to prove whether the disease or the negligence caused the patient’s death. The patient, or family member in some cases, making the claim must show that it is more likely than not that the doctor’s negligence caused the injury or harm. This typically requires the testimony of an expert witness.

The Injury or Harm Led to Specific Damages

Even if a patient believes his doctor, or another medical professional, made a mistake in treating him, he cannot sue for medical malpractice if he did not suffer harm as a result. It is necessary for the patient to prove, not only that the doctor caused harm through negligence, but that the injury or harm led to specific damages. In order to meet the basic requirements for a medical malpractice claim, the patient must prove that harm occurred. Specific damages recognized by law include:

  • Pain and suffering
  • Mental distress
  • Additional medical bills
  • Additional medical treatment
  • Lost work or earning capacity

Medical Malpractice Lawyers

Medical malpractice laws vary from state to state, the requirements being stringent and complex. Medical malpractice lawyers have experience in representing patients and their families in malpractice lawsuits, and can evaluate their claims to determine whether they are likely to be successful in obtaining a favorable verdict at trial. This is important to know, as malpractice lawsuits generally require testimony by one or more expert witnesses, as well as a great deal of investigation, and filing of legal documents. All of this can be costly, and some states have placed a limit on how much a patient can be awarded in a medical malpractice lawsuit.

For example:

Louanne goes into labor in her fifth month of pregnancy, and is admitted to the hospital. Her doctor orders medications to stop the contractions, and determines that Louanne has an infection that commonly causes early labor. She is kept in the hospital on bed rest, and put on antibiotics delivered through her IV. During her treatment, the nursing staff does not take proper care to ensure her IV line is disinfected prior to administering medications through the ports, and Louanne becomes infected with E coli, a serious bacterial infection.

Louanne’s contractions begin anew, and despite the efforts of her doctor and nurses, she loses the baby. Louanne is still very sick, however, having developed pneumonia caused by the E coli bacteria. She nearly dies, but does finally make a recovery. Christmas day came and went while Louanne was in the hospital, ill nearly to death’s door, while mourning the loss of her baby.

A few months later, after continuing to recover at home, Louanne consults with a medical malpractice lawyer, who agrees that her illness and loss of her child were clearly caused by the medical staff. She advises Louanne that it would not benefit her to file a lawsuit, as her state had passed a law limiting a patient’s recovery in a medical malpractice lawsuit to $50,000.

The cost of pursuing the lawsuit alone, in terms of expert witnesses, depositions, and attorney’s fees, would be much more than that. In this example of medical malpractice, the experienced attorney delivered bad news, but saved months, or likely years, of litigation and heartache.

Damages for Medical Malpractice

When a person is able to prove that medical malpractice occurred and caused harm, he may be awarded monetary damages for medical malpractice. This takes the form of general damages as compensation for the patient’s pain and suffering, special damages to cover expenses such as medical bills and loss of income, as well as punitive damages, which may be awarded in certain circumstances to punish and deter the medical professional from repeating the negligent behavior.

Real Medical Malpractice Lawsuit for Childbirth Injuries

At about 9:00 p.m. on a November evening, Lisa Antonelli, who was 38 weeks pregnant, became concerned that she hadn’t felt her baby move for some time. She went to the emergency room, where OB/GYN Doctor Jacqueline Halladay performed tests that indicated the fetus was in distress. By 1:30 a.m., it was clear that a caesarean section was needed, as the baby was being deprived of oxygen. Instead,

Dr. Halladay gave Lisa pitocin to induce contractions. At around 3:30 a.m., the baby’s heart rate dropped dangerously low, and the doctor finally ordered a caesarean section to deliver the baby. The procedure didn’t take place until about 7:00 a.m. because the doctor didn’t think it was an emergency. Immediately after the little boy was delivered, he had a seizure, and was transferred to another hospital to be treated for a massive bleed in his brain, which most likely was caused by the lack of oxygen for an extended time.

While the baby lived, his brain injury left him with cerebral palsy. He has a shunt in his head, he needs help with everyday activities, and he can only walk with braces. The parents hired a medical malpractice lawyer and filed a civil lawsuit, claiming the doctor knew the baby was in distress, but failed to perform the C-section when it was needed. At trial, the parents claimed that, had the doctor performed the procedure sooner, their baby would not have suffered injuries due to the lack of oxygen.

After deliberating about six hours, the jury determined that the doctor acted negligently by waiting more than five hours to deliver the baby after learning he was in severe distress. The family was awarded the hefty sum of $40 million.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
  • Expert Witness – A witness possessing training, education, skill, or experience in a specific subject, that is beyond that of the average person, who is allowed to give an opinion at trial.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Jury – A group of people sworn to render a verdict in a trial, based on evidence presented.
  • Negligence – Failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances.
  • Punitive Damages – Money awarded to the injured party above and beyond their actual damages. Punitive damages may be awarded in cases where the defendant’s actions in regard to the case are malicious, or so reckless as to give a reasonable person pause.

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