The Injured Patient’s Guide to Medical Malpractice Claims

Learn when medical errors count as malpractice, deadlines for medical malpractice claims, and what it takes to win compensation for your injuries.

Thousands of patients suffer and die every year because their medical provider made a mistake. Experts believe that medical errors are now the third leading cause of death in the United States.¹

You deserve to be compensated for the injuries and emotional distress caused by your healthcare provider’s mistakes. But where do you start?

Here’s where we unpack the definition of medical malpractice, how to determine if you have a strong medical malpractice claim, and what you’ll be up against with a malpractice lawsuit.

What Counts as Medical Malpractice?

Everybody makes mistakes, even doctors. But not every mistake is grounds for a malpractice claim against your healthcare provider.

Poor patient outcome does not always indicate medical error. Seriously ill or injured patients may develop complications or die, even when the doctor and hospital provided the best treatment possible.

The legal definition of medical malpractice:

An action or omission by a healthcare provider, which falls well below the acceptable standard of care that other healthcare providers would have given under the same circumstances, resulting in injury to the patient.”

Two conditions must exist for a valid medical malpractice case:

  1. A medical patient received treatment well below the medical standard of care
  2. The provider’s action or inaction resulted in a verifiable, serious injury that would not otherwise have occurred

The “acceptable standard of care” is highly dependent on the circumstances. What counts as reasonable care for one patient might be considered malpractice for a patient under different circumstances.

Example: Differing Standards of Medical Care

A baby is born with serious brain injuries that could have been avoided by a Cesarean Section delivery. Is the doctor liable for medical malpractice?

Scenario A: Let’s say a woman in the late stages of labor arrives at a rural hospital emergency room. The hospital doesn’t have sensitive monitoring equipment, and there is no obstetrician on duty. Because there is no time to transfer the woman to a medical center, the emergency room doctor attends to the woman as she delivers vaginally.

The emergency room doctor provided appropriate care for the laboring woman under the circumstances.

Scenario B: Now let’s say the laboring woman is admitted to a big, modern medical center. She is treated by a board-certified obstetrician who fails to act quickly after the baby’s distress symptoms are seen on the fetal monitor. Rather than perform a C-section, the OB doctor goes to lunch and leaves a resident to deliver the baby vaginally.

The obstetrician failed to provide appropriate care to the laboring woman. The family would have a strong medical malpractice claim for the baby’s birth injuries.

Common medical errors leading to malpractice:

Failure to diagnose: If a physician fails to diagnose the patient’s condition or made an incorrect diagnosis, causing a delay that led to a poorer outcome for the patient, then the patient may have a viable medical malpractice claim.

For example, a woman who had a mammogram reported as “normal” may have a good malpractice case against the radiologist if she is later diagnosed with late-stage cancer that was visible but missed on the earlier mammogram.

Improper treatment: When a doctor treats the patient in a way that no other competent doctor would, or gives the right treatment in the wrong way, the patient could have a medical malpractice case.

An example is a doctor who orders insulin for a diabetic patient but writes the prescription for an amount five times the dosage for the patient’s age and weight, leading to life-threatening complications.

Failure to warn: Doctors should warn patients of known risks before performing a procedure or treatment. A patient who would not have given their consent if they had known the risk can have a valid malpractice claim if they are injured.

Doctors who perform emergency procedures on unconscious or critically ill patients are generally not liable for failing to get the patient’s authorization in advance.

Do You Have a Valid Malpractice Case?

Even when your healthcare provider makes a mistake, you probably don’t have grounds for a medical malpractice claim unless you suffered serious or permanent injuries.

Example: Injuries from Medication Error

Let’s say a doctor prescribed a form of penicillin for your ear infection after you listed a penicillin allergy in your medical forms. You broke out in an itchy rash all over your back and chest. The penicillin was discontinued, and the rash went away within 24 hours.

There was a medication error made by your doctor, but a day or two if discomfort from itching is not a serious injury.

On the other hand, if penicillin is given to a patient with a known allergy, and the patient suffers brain damage from anaphylactic shock, the injured patient has valid grounds for a medical malpractice claim.

Don’t wait to contact a personal injury attorney if you believe you are the victim of medical malpractice. Deadlines to file malpractice claims can be very short.

When the issue of medical malpractice comes up, most people immediately think of doctors.

Doctors do commit medical malpractice, but they aren’t the only healthcare providers who can be liable for substandard medical care. In some cases, more than one healthcare provider may be responsible for your injuries.

A healthcare provider is an individual or medical entity who provides:

  • Preventive medical care and counseling to individuals
  • Medical care for the purpose of treating illnesses
  • Rehabilitative care to individuals
  • Ancillary support to other healthcare providers

Healthcare providers can include:

  • Physicians who are general practitioners and internists
  • Surgeons and other specialists
  • Radiologists
  • Dentists and oral surgeons
  • Physician’s assistants
  • Nurses, nurse practitioners, and nurse-midwives
  • Anesthesiologists
  • Pharmacists

Healthcare facilities can include:

  • Hospitals
  • Urgent care centers
  • Pharmacies
  • Medical laboratories

In addition to diagnosis and treatment errors, common medical malpractice claims against doctors or medical facilities are filed for:

Medical product liability is different from medical malpractice. Learn more about:

Filing a Medical Malpractice Claim

You must hire an experienced attorney for a medical malpractice claim. Serious malpractice cases are complicated, time-consuming, and expensive.

Doctors, hospitals, and other healthcare providers pay thousands of dollars in malpractice insurance premiums every year. In exchange, the insurance companies aggressively fight any malpractice claims filed against them.

Malpractice insurance companies have an army of ferocious defense lawyers. These attorneys will stop at nothing to make sure their client-doctors are cleared of any wrong-doing.

Doctors rarely settle out of court. Their reputations are at stake. Once they admit malpractice, their record is forever blemished, and future plaintiffs could use their record against them.

Unless you have an experienced attorney and file a lawsuit, chances are you won’t get any cooperation from the healthcare provider. Most insurance companies won’t allow a medical provider to admit making a mistake, even if they are truly sorry for what happened.

Beware of the Statute of Limitations

Each state has a statute of limitations, meaning a deadline for filing malpractice lawsuits. Some deadlines are as short as six months from the date of the incident, and not necessarily from the date you realized there was a medical error.

If the statutory deadline runs out before you’ve filed a lawsuit, you forfeit your right to seek compensation for your damages, no matter how badly you were injured.

The sooner you have an attorney, the better. The deadline applies to all parties, so your attorney needs time to review your records and identify all the medical providers who may be liable for your injuries.

Adding more pressure to the time crunch, many states require medical malpractice claims to go through a special “review panel.” The review panels don’t award damages and don’t replace a lawsuit, but your case can’t proceed before the panel agrees that malpractice occurred.

Malpractice Lawsuits are Expensive

To win a medical malpractice case, you and your attorney must prove:

  1. The medical care provider owed you a duty of care
  2. What the standard of care should have been under circumstances similar to yours
  3. What the doctor or hospital did wrong or failed to do that violated the standard of care
  4. The failure to meet the appropriate medical standard was the direct and proximate cause of your damages

The only way to prove what the standard of care should have been is to hire expert witnesses – well-respected specialists in their medical field.

Likewise, proving what the healthcare provider did wrong also requires hiring medical experts, who will spend hours reviewing your medical records and other documents obtained through the discovery process.

Expert witnesses cost thousands of dollars and are essential to a successful malpractice case. Winning a medical malpractice case often comes down to a which side has the most convincing experts to testify in court.

Medical malpractice cases can result in a settlement or jury verdict worth hundreds of thousands, sometimes millions of dollars. Look for an experienced malpractice attorney who can advance the funds needed to cover the high cost of court fees, medical experts, financial accountants, and more.

Malpractice attorneys usually don’t charge for their initial consultation and represent injured clients on a contingency fee basis. That means you won’t have to pay your attorney’s fees unless your case is settled or you win a verdict in court.

You deserve fair compensation for the injuries and suffering caused by medical malpractice. There’s no cost to find out what a skilled attorney can do for you.

Video: Intro to Medical Malpractice Claims

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>