You deserve compensation for medical mistakes that cause serious harm. Explore what counts as malpractice, common types of claims, and average payouts to victims.
Thousands of patients suffer and die every year because a medical professional made a mistake. Experts believe that medical errors are now the third leading cause of death in the United States.¹
Even the finest doctors can make terrible mistakes. But some healthcare providers cause harm to their patients through carelessness or greed.
What is medical malpractice?
Medical malpractice is an action or omission by a healthcare provider, which falls below the acceptable standard of care that other providers would give under similar circumstances, resulting in injury to the patient.
If you or a loved one are the victims of medical malpractice, you have the right to pursue compensation for your injuries and suffering.
What Counts as Medical Malpractice?
Poor patient outcomes count as medical malpractice when the standard of care is compromised because the medical provider does something wrong or fails to do what any other provider would do in the same circumstances.
The “acceptable standard of care” depends on the circumstances. What counts as reasonable care for one patient might be considered malpractice for a patient under different circumstances. For example, the standard of care you can expect for a complicated medical issue is different for a rural medical clinic than for a major regional medical center.
Example of 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.
Injuries caused by a defective medical device are handled differently than injuries caused by malpractice. If a defective medical device was determined to be inherently dangerous or unsafe for use as intended, you might have grounds for a product liability case against the manufacturer.
Common Medical Errors Leading to Malpractice
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 Diagnose
If a physician fails to diagnose the patient’s condition or makes a misdiagnosis, 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.
Failure to Warn
Doctors should warn patients of known risks before performing medical procedures 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.
Building a Strong Malpractice Case
Every medical malpractice case is unique. However, there are two elements necessary to establish a valid claim:
- You or a family member received treatment well below the medical standard of care
- The provider’s medical negligence caused a verifiable, serious injury that would not otherwise have occurred
Doctors aren’t the only healthcare providers who can be liable for substandard medical care. Medical facilities and professionals throughout the continuum of care may be responsible for your injuries, including pharmacists, radiologists, nurses, and more.
To win a malpractice lawsuit, you must prove:
- The medical or dental care provider did something wrong or failed to do what any other care provider would do in that situation. In other words, they violated the “standard of care” you should have received.
- The error caused an injury you would not have suffered if the provider hadn’t violated the standard of care.
- Your injury resulted in measurable damages like additional past and future medical bills, loss of income, disability or permanent disfigurement, or unusual pain and suffering.
How to Prove Your Case
The only way to prove that the standard of care was violated is to hire expert witnesses. These are 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 often comes down to which side has the most convincing experts to testify in court.
Look for an experienced malpractice attorney in a well-established law firm that can advance the funds needed to cover the high cost of court fees, medical experts, financial accountants, and more. Most medical malpractice attorneys offer a free consultation to injured patients.
Prepare for an Expensive Legal Battle
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 defense lawyers. These attorneys will stop at nothing to make sure their client-doctors are cleared of any wrongdoing.
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.
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
Every jurisdiction has legal statutes that set deadlines for settling injury claims or filing a lawsuit against the negligent party. If you miss the deadline, you forfeit your right to seek compensation for your injuries or the death of a loved one.
It’s important to know that hospitals and related facilities run by government agencies, like a county hospital, are often protected by deadlines as short as a few months after the injury occurred. To make matters worse, the process for filing injury claims against a government-run institution is often complicated and confusing.
Consider Filing a Medical Board Complaint
Medical and dental service providers are licensed and regulated by the state where they practice. Whether or not you have grounds to pursue a medical malpractice case, you have the right to file a formal complaint against a negligent physician with the appropriate medical board.
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.
Some medical mistakes don’t rise to the level of actionable “malpractice” when they only cause minor injuries or are caught before resulting in injuries.
If you were prescribed an antibiotic despite a known allergy, you probably wouldn’t get far with a medical malpractice case if the only harm you suffered was an itchy rash for a few days. Likewise, if the pharmacist filled your prescription with the wrong medication, and you didn’t take it because it didn’t look right, you suffered no physical harm.
Following your complaint, the board will investigate the doctor. You won’t get any compensation from a medical board complaint, but physicians who are found to be negligent can face heavy fines or have their medical license revoked.
Malpractice Victim Injury Compensation
Medical malpractice cases can result in settlements or jury verdicts worth hundreds of thousands, sometimes millions of dollars.
The highest payouts are for “catastrophic” injuries, meaning the patient suffers fatal or life-changing injuries, like permanent paralysis or brain damage. Court awards to injured adults are public information.
Average Malpractice Payouts Among U.S. Physicians
A study authored by Adam C. Shaffer, MD, et al., and published in JAMA, the Journal of the American Medical Association, found that while the number of malpractice claims has declined over the years, the compensation payouts have risen significantly.
The average overall payout for medical malpractice was $329,565, an increase of 23.3 percent from the average payouts of $286, 751 in 1992-1996.
Neurosurgery specialists had the largest average malpractice payout ($469, 222) and dermatologists had the smallest ($189,065).
Catastrophic injury claims with payouts of more than $1 million accounted for less than 8 percent of all malpractice claims.
Case Example: Jury Awards $17 Million to Man Paralyzed After Surgery
Mike Rodgers could still move his legs when he was taken to the Charleston Area Medical Center after a motorcycle accident. He was treated by Dr. John Orphanos, who performed two spinal surgeries on Rodgers.
After the surgeries, Rodgers lost all feeling and movement below the waist. He is now wheelchair-bound for the rest of his life. Through his attorneys, Rodgers filed a medical malpractice lawsuit against Orphanos.
At trial, attorneys for Rodgers presented evidence that Orphanos failed to order pre-surgery scans, took shortcuts, and other negligent acts that fell short of a reasonable standard of care.
The jury found Orphanos to be 100% at fault, awarding a total of over $17 million to Rodgers, including $10 million for past and future medical expenses and lost wages, and over $7 million for his pain and suffering.
Most malpractice settlements are subject to confidentiality agreements. The provider’s insurance company is willing to settle out of court to keep the compensation amount out of the public eye. The injured patient may also want to keep their medical details private.
Types of Medical Malpractice Claims
Medical mistakes can happen at any point in the healthcare delivery process, from the pharmacist at the corner drugstore, the nearby urgent care center, hospitals, medical centers, and medical offices throughout the United States.
Direct Care Malpractice Injuries
Individual doctors who commit errors that rise to the level of medical malpractice comprise a significant percentage of medical malpractice cases, particularly surgeons and obstetricians.
Medical errors by obstetricians often harm two people, the pregnant woman and her baby. Your attorney may seek compensation for you and your child.
- Birth Injury Lawsuits Against Doctors and Hospitals
- Lawsuits for Cesarean Section Errors
- Filing a Surgical Malpractice Lawsuit
- Dental Malpractice: When You Can File a Lawsuit
Hospital Errors and Malpractice
Facilities like hospitals, outpatient surgical centers, urgent care centers, and radiology centers have a duty of care to patients and can be held liable for medical malpractice when it occurs.
Some doctors have privileges to work at a hospital, but are not hospital employees, while nurses and other healthcare professionals are usually employees of the facility where they work. Depending on the circumstances of your medical injuries, you may have grounds for a malpractice case against more than one party, such as a doctor and the medical center where you were treated.
- Hospital Malpractice: Filing a Lawsuit for Compensation
- Fatal Errors: Hospital Wrongful Death Claims
- Emergency Room Malpractice and Compensation
- Can a Doctor or Hospital Deny Treatment?
Administrative Medical Failures
Issues with your health insurance company or medical privacy are not considered medical malpractice. However, if you are part of a Health Maintenance Organization (HMO) and are harmed by delayed medical testing or treatment, consider talking to a personal injury lawyer. The circumstances leading to your injury may qualify as medical malpractice.
If you are harmed because your non-HMO health insurance company won’t approve coverage for a diagnostic test, medication, or medical treatment, you have the right to appeal the decision and may be able to take legal action for bad faith denial of benefits.
Medical privacy is a hot topic that often raises questions about compensation for HIPAA violations. While careless medical records custodians may be subject to fines and penalties for unauthorized disclosure of your medical information, federal law does not provide the patient with a “right of action” to file a lawsuit.
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