Medical Malpractice Legal FAQs

One of the most common types of malpractice is a misdiagnosis, which happens when a doctor diagnoses a patient with the wrong illness or does not diagnose them as promptly as a competent doctor would. Another situation in which malpractice can occur is during surgery. Errors in surgical procedures may include operating on the wrong body part or the wrong patient, leaving foreign objects in the patient’s body, lacerating or perforating surrounding organs, or improperly administering or monitoring anesthesia. Also, malpractice often happens when a doctor prescribes the wrong medication to a patient, or when a nurse provides them with the wrong medication or the wrong dose of a medication. Some of the most tragic malpractice incidents arise in the context of birth injuries, which affect a fetus or newborn. The child may cope with the effects of the malpractice for the rest of their life.

You may sue any individual who committed the malpractice. Most often, the defendant will be a doctor, but sometimes a patient will sue a nurse, an anesthesiologist, or another hospital staff member. They may sue several different individuals who may have contributed to the error, especially if it is not immediately obvious who was responsible. If the person who committed the malpractice is an employee of a hospital or another entity, a patient likely can sue the entity as well. They would need to show that the employee was acting in the scope of their job duties when the malpractice occurred. A patient usually cannot sue a hospital if a doctor committed the malpractice, since most doctors are not employed by hospitals. However, there are some exceptions that may allow a patient to include the hospital in the lawsuit.

This will depend on a combination of objective and subjective factors. Most damages in medical malpractice cases are compensatory damages, which means that they are intended to reimburse the patient for the financial, physical, and emotional consequences of the malpractice. Economic damages (also known as special damages) cover items such as medical costs, lost income, the costs of future treatment, and other losses that are relatively objective. Non-economic damages (also known as general damages) cover the subjective pain and suffering of the patient, as well as other types of harm that are challenging to quantify. Someone who suffered a permanent disability or loss of function is likely to recover a higher award of damages. A patient who can prove that the defendant acted intentionally or in another egregious manner may be able to receive punitive damages as well.

The standard of care in medical malpractice cases is specific to the professional context. It is different from the standard in ordinary personal injury cases, which is based on what a reasonable person would do. A health care provider is required to act as a competent health care provider in the same specialty would act when treating a similar patient. Since judges and juries would not understand this standard on their own, the patient will need to introduce expert testimony to explain the standard of care. The expert generally must be from the same specialty as the defendant, or at least be familiar with it.

The statute of limitations in a medical malpractice case defines the period in which a patient can bring a claim. It usually starts running when the incident occurs, but it may be extended when a patient is receiving a continuing course of treatment from the same provider. The statute of limitations also may be extended based on the discovery rule. This applies when a patient did not have an opportunity to discover the malpractice when it first happened. Finally, victims of birth injuries may benefit from a longer statute of limitations, which may even extend until they turn 18.

A damages cap imposes a limit on the amount of compensation that a medical malpractice plaintiff can receive. It may apply to the total award or only to part of the award, such as the non-economic damages. These caps often but not always are adjusted for inflation. A damages cap is meant to restrain juries from awarding excessive amounts of compensation to a sympathetic plaintiff and excessively penalizing a negligent medical professional. Caps also are meant to keep the costs of medical malpractice insurance reasonable and prevent doctors from being driven out of the profession based on a single lawsuit.

You can sue the individual nurse if their medication error fell below the standard of care that a competent nurse would have met. In addition, you may be able to sue the hospital that employs the nurse. You would need to show that the nurse was acting in the scope of the employment relationship and that they were not supervised by an independent doctor (a doctor who was not a hospital employee). If they were supervised by a doctor who was a hospital employee, you still may be able to sue the hospital.

Possibly, but not necessarily. A doctor has a duty to tell a patient about any significant risks involved in a procedure, but they do not need to tell a patient about every imaginable risk. Failing to tell a patient about a significant risk may result in liability under the theory that they did not get informed consent. (This rule does not apply in emergencies, since a doctor does not have time to get informed consent.) A patient bringing a claim based on a lack of informed consent will need to show that a competent doctor would have disclosed the risk, or that a reasonable patient would have made a different decision if they had known about the risk.

Health care providers, insurers, and others have suggested imposing more rigorous damages caps, as well as limits on the fees that a plaintiff’s attorney can receive. Other reform proposals include initiatives to shorten the statute of limitations so that a patient cannot bring a lawsuit if a long time has passed since the malpractice. A more controversial proposal involves transferring these cases to a distinctive type of court, in which judges would be trained in the medical field. This potentially would eliminate a plaintiff’s right to a jury trial, so it seems unlikely to become a reality.

While you technically do not need a lawyer for most medical malpractice cases, you should strongly consider hiring a lawyer. Medical malpractice cases are more complex than car accident cases and many other personal injury claims. They require assembling and interpreting medical documents, as well as retaining experts to testify on your behalf. A plaintiff also needs to meet specific procedural requirements before their case even can be heard. It is easy for a litigant who is unfamiliar with the legal system to make mistakes during this process, which could result in the loss of their rights. At the very least, you should consult an attorney before bringing a claim to get a sense of the steps that you need to take, the pitfalls that you may encounter, and the overall strength of your case.