Medical Malpractice


Medical malpractice occurs when a person suffers injury due to the negligent act or omission of a health care provider. Common categories of medical malpractice cases include the failure by a health care provider to follow standard procedures, properly diagnose a medical condition (for example, failure to diagnose cancer), and to prevent injury at birth. When a lawsuit alleges negligent injury causing death, it is a "wrongful death" case.

To be successful in a medical malpractice lawsuit, the plaintiff, who is either the injured person or the injured person's legal representative in a wrongful death case, must prove by a preponderance of the evidence (meaning, more likely than not) that the health care provider breached a duty owed to the plaintiff, causing injury and damages to plaintiff. Specifically, the plaintiff must show:

  • the health care provider owed plaintiff a duty (which arises when plaintiff enlists care, services, or treatment from a health care provider)
  • the health care provider breached the duty owed to plaintiff by failing to provide care, services, or treatment commensurate with the standard of care practiced within the relevant medical community, and
  • this failure caused injury and damages to the plaintiff.

Who can be liable for medical malpractice?

A plaintiff may bring a case against a health care provider, such as a doctor, dentist, or nurse. The employer of the health care provider, such as a hospital, may also be sued under the theory of respondeat superior (meaning, "let the master answer"). This theory, which provides for vicarious liability of the health care provider's employer, may be used where the negligent health care provider was, at the relevant time, an employee acting within the scope of employment. Where the health care provider is an independent contractor (not an employee), vicarious liability may still attach, for example, if the plaintiff can show the entity's negligent hiring of the independent contractor proximately caused plaintiff's injury.

What damages are available in a medical malpractice lawsuit?

Successful plaintiffs in medical malpractice may recover "compensatory" damages. Such damages are monetary compensation for the pain and suffering (physical and psychological) caused by the injury, and for financial losses, including medical bills, lost wages, and loss of earning power, if any, caused by the harm. A plaintiff may also be awarded "punitive" damages, which are aimed at punishing and deterring a defendant for wanton or reckless conduct.

What law governs medical malpractice cases?

As part of tort law, medical malpractice derives from the common law (or judge-made law). In addition, states have enacted tort legislation, including law on medical malpractice.

Many states have legislated medical malpractice reforms in response to claims by health care providers that lawsuit costs have driven up medical costs and medical malpractice insurance premiums, despite studies challenging the accuracy of these claims. One widely adopted reform is the setting of a limit (known as a "cap") on monetary damages recoverable in medical malpractice lawsuits, regardless of the actual amount of loss suffered by the plaintiff in an individual case. Additionally, some states require a plaintiff to submit, as a prerequisite to filing a lawsuit, an affidavit (a sworn written statement) by a health care practitioner in the same field as the alleged wrongdoer that a reasonable likelihood of a deviation from the relevant medical standard of care occurred.

Although some federal laws apply to medical malpractice cases, such as Constitutional limits on the award of damages, the federal government has not enacted any overarching substantive federal law on medical malpractice.