FAQ: Medical Malpractice

What is Medical Malpractice?

Medical Malpractice is the result of professional misconduct and/or the failure to use adequate levels of care, skill or diligence on the part of the professional whose responsibility resulted in harm to another.

Malpractice typically occurs if a professional fails to perform his or her professional skills in an assignment he or she has accepted at the standard of care, skill and learning applied circumstances by the average prudent reputable member of the profession in the give in the "community". Comparison of performance is based upon the standard of care for the professional in the "community" - what other professionals in the same field do for their clients who are located in the same geographic area.

In order for malpractice to be actionable, injury, loss or damage must be suffered by the person who retained the professional's services, or those otherwise entitled to benefit from or rely upon the professionals services. Loss can also be from inability to work.

What are the Statute of Limitations for Medical Malpractice

Each state has their own laws regarding the time period a person must report their injury. There may be a distinction between adults and minors. Click here for a state by state breakdown of the Statute of Limitations.

What are the Limits on Damage Awards

In the last couple of years states have been aggressively passing legislation to limit the amount of damages that an injured person make recover due to medical malpractice (See Limits on Damage Awards). In addition, some states have established mandatory arbitration of medical malpractice disputes as a pre-requisite to a lawsuit for medical malpractice.

Is Misdiagnosis Necessarily Malpractice

Not always. The courts realize that medicine is not an exact science; doctors cannot be expected to be right every time they make a diagnosis. It is a fact that a misdiagnosis can be arrived at through standard tests, even when the tests are performed accurately or evaluated by a skilled doctor with the utmost care.
A misdiagnosis may be malpractice if the doctor fails to get a medical history, order the appropriate test for the illness, or recognize the symptoms of the illness. And yet, there is no basis for a malpractice claim if there is no injury, loss or damage as a result of the misdiagnosis and consequent treatment, on the theory that you are no worse off than you were before.

Who can commit malpractice?

In theory, any professional with special skills like accountants, attorneys, actuaries, chiropractors, dentists, physicians, psychologists and therapists are typically the persons named in a malpractice lawsuits. Generally the professional is licensed by the state.

Specific to medical malpractice a variety of types of health care providers-such as a hospital, physician, nurse, dentist, psychologist, chiropractor, or therapist-are subject to medical malpractice actions. For simplicity, "doctor" is used throughout, but the legal principles apply to any type of health care provider.

Will I need an expert to prove malpractice has occurred?

It is highly recommended that you employ the skills of legal consult, specifically an individual that has experience in your particular kind of case. In order to establish malpractice, it will be necessary to prove what the standard of care in the community for that professional for handling a similar matter is. Lay people do not have the necessary education, experience or skills to act as a professional -- or to gauge what a professional is supposed to do or refrain from doing in a particular situation.

In order to determine what should or should not have been done in your particular circumstances, someone with the requisite education, experience and skill would be needed to establish what the standard of the community is. Many malpractice lawsuits are won/lost based upon the effectiveness of the expert.
Experts should always be hired by your attorney, to maintain confidentiality and retain your rights.

How do I recover damages sustained due to malpractice?

Your first interview with a lawyer can determine whether medical malpractice has been committed. The issue is what the professional did or failed to do? Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice.

You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you s/he's at fault. (He may not even know s/he's at fault.) In fact often an attorney has to hire an expert or consultant to help assess whether or not there was malpractice. Unless the facts are very clear, you generally would be asked to pay for the cost of that initial assessment.

What is the most common cause of failure to recovery?

The greatest bar to recovery is the passage of time. Every case is governed by a statute of limitations, which is a time limit within which a lawsuit must be commenced. If a lawsuit is not brought within that time limit (normally two years), your right to recover your damages will permanently expire. There are many things that may extend the statute of limitations in an appropriate case. For example, the statute of limitations may not begin to run until you discovered, or should have discovered, the malpractice. Also, the statute of limitations is extended for children and people who are incapacitated. You should contact a lawyer immediately if time is an issue.

If a procedure fails is that malpractice?

Medical malpractice does not occur every time medical treatment is not successful. Doctors are not God and cannot be expected to always be correct. But a doctor is expected to have the proper knowledge and experience. They should apply correct techniques in treating a patient. They should be familiar with the treatment that is commonly used for the particular ailment or injury.

Is a doctor protected from malpractice lawsuits when they provide emergency medical treatment at an accident site?

Yes.