How to Identify Physician Malpractice and When You Can File a Lawsuit

If a doctor’s negligence has injured you or a loved one, you have a right to expect compensation. Learn more about winning high-dollar malpractice claims and lawsuits.

Every year thousands of people suffer and die from doctor malpractice. Medical experts believe that medical errors are the third leading cause of death in the United States. ¹

Very rarely will a doctor admit to making a mistake.

Some doctors, who would be willing to admit to making a medical error, don’t dare come clean with the patient for fear of violating the “cooperation clause” in their malpractice insurance.

For many doctors, their insurance company expressly forbids them from admitting fault. ²

Doctors do make mistakes, and sometimes those mistakes are fatal to their patient. When you or your loved one suffer from a physician’s malpractice, you have the right to expect fair compensation.

Common Types of Medical Malpractice Injuries

More than half of all U.S. physicians have been sued for malpractice, most in a lawsuit naming more than one medical professional. Specialists are more likely to be sued than primary care doctors, with surgeons and OB-GYN practitioners sued most often.

The leading reasons for malpractice lawsuits are:

  • Failure to diagnose a disease or medical condition
  • Complications from treatment or surgery
  • Pregnancy and childbirth injuries to mother or baby
  • Poor outcome from treatment
  • Anesthesia errors
  • Failure to provide emergency medical treatment
  • Unreasonable delay in treating a diagnosed medical condition
  • Medication errors

Harm to patients runs the gamut from temporary to life-changing and can include:

  • An extended period of illness and recovery
  • Extreme pain and suffering
  • Disfigurement
  • Permanent disability
  • Brain damage
  • Loss of organs or limbs

Sadly, physician malpractice all too often results in the wrongful death of the patient.

Case Summary: Jury Awards $29.5 Million for Physician Malpractice  

Forty-year-old Carrie DeJongh died at Sioux Center Community Health Center after an allergic reaction to dye injected into her body for a CT scan.

Attorneys for DeJongh’s family filed a malpractice lawsuit against Dr. Roy Slice, who administered the CT scan to Ms. DeJongh.

The lawsuit alleged Dr. Slice failed to properly treat DeJongh after she suffered a life-threatening allergic reaction during the scan and that Carrie DeJongh would be alive if not for the physician’s malpractice.

The jury awarded the estate $1.5 million for DeJong’s pre-death pain and suffering, $5.5 million to each of Ms. DeJongh’s four children for loss of parental consortium, and $6 million to her husband for loss of spousal consortium.

What Constitutes Physician Malpractice?

Malpractice occurs when a doctor’s treatment deviates from the medical standard of care in the local community, resulting in harm to the patient.

For legal purposes, the medical standard of care is defined as:

“the type of care a reasonably competent physician, practicing the same type of medicine [your physician practices], would have provided under the same circumstances.”

The standard of care definitions are vague and open to interpretation. In malpractice cases, it’s important to figure out what the standard of care should have been for the injured patient. Unfortunately, the practice guidelines for doctors are always changing.

Even within specialties, equally good doctors have differing opinions of the best approach for treating an illness or medical condition.

Each malpractice case must be handled in view of the circumstances. For example, a physician practicing in a remote, rural part of the country may have to deliver babies, perform minor surgery, treat infectious diseases, and more. Access to sophisticated diagnostic tools like CT scans or MRIs may be miles away.

It would be impossible for that small-town physician to have specialized skills, like those of an obstetrician, neurologist, or oncologist. A small-town doctor who makes a medical error may have done the best they could under the circumstances

Physicians, like everyone else, aren’t perfect and do make mistakes. Making a mistake, such as prescribing the wrong medication, doesn’t automatically mean the physician committed malpractice. If the mistake is caught in time and no one is injured, the patient wouldn’t get very far with legal action.

On the other hand, mistakes that result in serious harm to the patient are exactly the kind of physician malpractice that can lead to a lawsuit.

Case Summary: Heart Surgery Malpractice

Movie and television comedian Dana Carvey underwent double-bypass surgery for a blocked coronary artery in 1997.

Two months later, still suffering from heart-related symptoms, Carvey learned that Dr. Elias Hanna had operated on the wrong artery in Carvey’s heart. Carvey had to have a second cardiac procedure to save his life.

Carvey’s attorneys filed a $7.5 million malpractice lawsuit against the physician who botched the operation. The case settled during trial for an undisclosed amount.

Proving Your Doctor was Negligent

To win a physician malpractice case, your attorney will have to prove each of these four elements:

  • Duty of Care means you had a relationship with a physician who had an obligation to avoid causing harm to you or your loved one.
  • Negligence happens when a doctor fails to treat the patient or does something no reasonable physician would do under the circumstances — for example, failing to verify the patient’s blood type before a transfusion.
  • Liability means responsibility. The negligent physician is usually liable for the injured patient’s damages.
  • Damages can include the costs of corrective medical treatment, care for the patient, out-of-pocket medical expenses, lost wages, and pain and suffering.

Malpractice that doesn’t result in serious injury or illness, or unnecessary exacerbation of an existing injury, is malpractice without a legal remedy. Even if your doctor made a mistake, if you weren’t badly hurt, you wouldn’t win much, if anything at all, through a lawsuit against the doctor.

Emotional distress on its own isn’t enough to support a malpractice claim. You must have measurable and verifiable damages to move forward with a malpractice action.

For example, let’s say an obstetrician ordered a medication for a pregnant woman. After getting the medicine home, she discovered from the package insert that the medication could cause birth defects. The woman was understandably angry and scared, but since she avoided taking the medicine, she had no measurable damages.

If the woman trustingly took what her doctor ordered, and her child was born with defects caused by exposure to the medication during pregnancy, both mother and child would have suffered significant damages.

The obstetrician knew, or should have known the medication was dangerous for a pregnant patient, yet prescribed it anyway. The doctor would therefore be liable for the damages.

Attorneys Boost Malpractice Compensation

If your physician made a mistake and the only injuries you sustained were some anxiety or anger, it probably won’t be worth trying to seek compensation. But you can still take action against the negligent doctor.

Whether or not you file a lawsuit, you have the right to file a formal complaint against a negligent physician with your state’s medical board.

Physicians pay a significant amount for medical malpractice insurance, and are defended by expert attorneys. You won’t be able to handle a medical malpractice claim on your own. You’ll need a skilled personal injury attorney to recover any financial compensation.

These are high-dollar claims that almost always require complex litigation to win. Verdicts and settlements can be hundreds of thousands of dollars, with many running into the millions.

With a potential million-dollar verdict at stake, the insurance company will fight long and hard to keep you from winning. Legal expenses can also be high, as your attorney will put together a case supported by the opinions of medical experts.

Your attorney will also look at other parties who may be liable for your injuries, such as the hospital or other doctors.

Don’t worry about up-front costs. Experienced attorneys have the knowledge and financing to handle complex medical malpractice cases.

Attorneys typically represent malpractice victims on a contingency fee basis, meaning your attorney won’t be paid unless your case settles or you win a court verdict.

There’s too much at stake to put off talking to an attorney about the value of your claim.

Most attorneys don’t charge for the initial consultation. There’s no obligation, and it costs nothing to find out what a skilled personal injury attorney can do for you and your family.

Physician Malpractice Questions & Answers

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 >>