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What Is Medical Malpractice?

Medically Reviewed by Brunilda Nazario, MD on September 19, 2022

Medical malpractice can happen when you’re harmed, injured, or die because your doctor or another health care professional didn’t do their job right.

Not all cases of medical malpractice become lawsuits. And to have a legal case, you can’t just say your doctor did something wrong -- you must prove it. But if you sue them and you win, it can result in a financial payout. It also may lead to disciplinary actions from their state medical board or health system.

But if you choose to sue, you’ll need to file a medical malpractice claim. You’ll likely do this with the help of a medical malpractice attorney. You’ll have to prove neglect was involved for your case to be a successful.

Your claim must show all of these:

  • Your doctor had a duty to care for you.
  • Your doctor was careless.
  • Your doctor’s neglect caused harm, injury or death.
  • You suffered loss (pain and suffering, or financial, or all of these).

Who Governs Malpractice Claims?

States usually have authority over medical malpractice cases, but a case could go to the federal court if it involves the federal government. For example, if you were treated at a clinic operated by the U.S. government, it may be a federal matter -- and then the federal courts would handle it.

Some states have a limit on how much money you can get if you win. Cases can also result in punitive damage, which means that your doctor or other health care professional may be punished or lose their credentials to practice.

What Are the Types of Medical Malpractice?

Some of the different kinds are:

  • Failure or delay of diagnosis. If your doctor didn’t diagnose you, or waited too long to do so, this may apply. These types of cases were most popular in one review of studies from various countries.
  • Misdiagnosis. You may have received the wrong medical diagnosis, which means you might’ve been treated for a condition you didn’t have. And you may have not received treatment for a condition you did have. Plus, if the treatment caused permanent damage or death, it may be considered medical malpractice.
  • Medication error. If you received the wrong dosage of a medication, or you got the wrong medication altogether, it could be considered malpractice. This is the second most common reason for medical malpractice claims in the report mentioned above.
  • Other medical errors. This includes medical errors during or after treatment, such as a doctor operating on the wrong body part of your body or not ordering a medical test that’s commonly used during the diagnosis process.
  • Birth injuries. Medical malpractice applies to all people who receive treatment, and that includes babies. If your child is born with a disability due to decisions your doctor made during childbirth -- or if your child died as a result of poor decision-making – it’s a form of medical malpractice.
  • Long-term consequences. If you have a disability or chronic pain from a medical procedure done incorrectly, or if you can no longer work a result of it, you may have a malpractice case.

What Are Alternative Ways to Resolve a Dispute?

Most medical malpractice claims don’t make it to trial. Many are settled outside of court.

You may be able to work with the medical center, hospital system, or medical practice directly to resolve a case using an alternative dispute resolution (ADR) model.

Some health care professionals use a form of ADR known as communication and resolution programs (CRPs) to address medical errors when they occur. It’s a way to avoid or mediate lawsuits.

In its process, a CRP:

  • Fosters open communication with those who received treatment and their family members
  • Investigates incidents
  • Offers explanations
  • Delivers apologies
  • Provides compensation or other types of resolution

Does the Threat of Medical Malpractice Change How Doctors Provide Care?

Studies show that health care providers may change the way they work in order to avoid the chance of a lawsuit. This is called defensive medicine. There are two types:

Positive defensive medicine. This happens when your doctor provides too much care out of fear of being sued.

Negative defensive medicine. This type occurs when your doctor doesn’t provide enough care. Or maybe they don’t provide care at all.

Defensive medicine, along with medical malpractice insurance costs, can result in rising health care costs for you and for health care systems.

What Are Your Doctor's Responsibilities to You?

They’re supposed to abide by certain professional standards of care when they treat you. When they don’t, malpractice can occur.

Those standards include providing medical care in areas where they’re trained and capable. They also include honesty and communication with you and your family. For example, they must get informed consent from you before doing a medical procedure. They can get that consent from your family members, or perform emergency medical care, if you aren’t able to give consent.

Some medical malpractice cases happen not only because the doctor made a mistake, but also because they didn’t get permission to do a procedure or take other medical action.

What Is Medical Malpractice Insurance?

In the U.S., doctors must have medical malpractice insurance in order to practice. This can protect them from medical malpractice lawsuits.

The two types of medical malpractice coverage include:

  • Claims-based policy. This coverage only covers a payout if the malpractice happens and the lawsuit is filed when the policy is in effect. Doctors can purchase tail coverage to extend that period of time so that it’s more like an occurrence-based policy.
  • Occurrence-based policy. This pays a claim based on the period when the doctor had the insurance, even if the policy is no longer active.

In short, the type of insurance your health care provider has can affect your medical malpractice case.

What If You or a Loved One Has Experienced Medical Malpractice?

Speak to a medical malpractice attorney to see if you have a viable case. The attorney may ask you to gather as much information as you can, including your medical records, to determine if you have grounds for a lawsuit.

Show Sources

SOURCES:

American Medical Association: “Informed Consent.”

Bono, M. Medical Malpractice, StatPearls Publishing, 2022.

Clinical Orthopedics and Related Research: “An Introduction to Medical Malpractice in the United States.”

Health Affairs: “Can Communication-And-Resolution Programs Achieve Their Potential? Five Key Questions,” “National Costs of the Medical Liability System.”

National Conference of State Legislatures: “Medical Liability/Medical Malpractice Laws.”

Patient Safety in Surgery: “Patient Safety Assurance in the Age of Defensive Medicine: A Review.”

BMJ Open: "The Epidemiology of Malpractice Claims in Primary Care: A Systematic Review."

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