Medical Malpractice

Medical malpractice (or medical negligence) occurs when a doctor, health care professional, hospital or other health care facility fails to care for someone in accordance with the accepted standards of the medical profession and the person is injured, becomes ill or a condition or illness worsens as a result.

What are the elements of a medical malpractice case?

In order to prevail in a medical malpractice case, you will need to show that:

  • You were under the care of a physician;
  • In the course of advising you, diagnosing you, or treating you, the physician failed to act as a doctor in the specialty should act; and
  • As a result you were injured, became ill, or a condition or injury worsened.


Improper treatment:

  • A doctor tells you that you broke your leg, but doesn’t properly put your cast on. The fracture heals improperly, causing you problems when you walk.

Injury during birth (to mother or child):

  • An obstetrician mishandles a baby’s head during birth, causing Erb’s Palsy.
  • An obstetrician fails to diagnose that the mother must give birth via C-Section–the mother bleeds profusely during birth, resulting in stroke, and the baby suffers brain injury due to lack of oxygen.

Prescription errors:

  • A doctor diagnoses you properly, but prescribes the wrong medication, making your condition worse.
  • A doctor diagnoses you properly and prescribes what would ordinarily be the right medication, but fails to notice your records say you are allergic to that medication, causing you violent illness.

Failure to diagnose or misdiagnosis:

  • You go to the doctor complaining of severe throat discomfort–the doctor treats you for strep throat, but fails to biopsy a suspicious growth. You return six months later with the same complaint, and a different doctor does the biopsy and diagnoses you with cancer.

Failure to monitor:

  • You suffer a minor heart attack, but the doctor’s failure to properly monitor your progress results in you having a second, more severe heart attack—one so severe you need a heart transplant.

Surgical errors:

  • You receive minor cataract surgery, but the doctor uses the wrong procedure, resulting in blindness.
  • You go to the hospital to have several polyps removed from your colon, but the doctor fails to remove one, and one year later, you are diagnosed with colon cancer.
  • You schedule surgery to have an infected toe amputated, and the surgeon mistakenly amputates your entire leg to the knee.
  • You have an otherwise successful surgery, but the doctors fail to remove a surgical sponge when they sew your wound, leaving the sponge inside your body, causing infection.

Failure to inform of the risks of a specific procedure:

  • All medical procedures have risk. Doctors are required to advise you of the risks so you can give informed consent to having the procedure done. When the doctor does not do so, and the risk associated with the procedure occurs, you may sue for malpractice if you can show that you would not have undergone the procedure had you known the risks. For example, if you are diagnosed with prostate cancer, there are many treatment options, including prostatectomy. You tell your doctor you do not want a prostatectomy, but the doctor tells you it’s the best option. Some of the risks of prostatectomy include incontinence and impotence. The doctor fails to inform you of these risks before your surgery, and you suffer debilitating incontinence after your surgery.

I’m just a regular person; how can I prove a medical professional didn’t do what he was supposed to do?

In medical malpractice cases, both you and the doctor/hospital/healthcare professional will use expert witnesses to prove your arguments. An expert witness is someone, usually another doctor or healthcare professional, with special knowledge about the specific issue in your case. The expert can offer an opinion on what the professional standards of the medical community are and whether your doctor/healthcare professional’s conduct breached them.

Are there certain situations in which I would not need to hire an expert witness to prove my case?

Maybe. There is a doctrine in law called “res ipsa loquitur.” That is Latin meaning, “The thing speaks for itself.” In medical malpractice, there are sometimes injuries that cannot have occurred but for the negligence of the doctor.

  • You go to the hospital to have a hernia fixed, and the doctor removes your gall bladder instead.
  • You go to the hospital for pneumonia, but you are mistakenly operated on and have your foot amputated.
  • You are operated on, and when you wake up, you learn that a clamp was left inside your body.

In res ipsa cases, you will often not need an expert to bolster your case. Rather, your lawyer will seek to prove:

  • The type of accident that caused your harm does not occur without negligence;
  • The equipment or conduct that caused your harm was under the physician’s (or his team’s) control at all times during the procedure;
  • You did not contribute to your own injury by your own behavior.

I have been injured by the wrongful conduct of my doctor:

  • Seek further medical attention
  • Document your claim
  • Your time to sue is limited; contact an experienced personal injury lawyer

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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