Recovering Compensation After Medical Malpractice

Protecting Your Rights When You Suffer Injury or Loss Due to Medical Negligence

Medical MalpracticeWhen you seek medical attention for an injury or illness, you expect, at a minimum, that your health won’t be compromised because of negligence by a doctor, nurse, or other medical practitioner. Unfortunately, medicine has become big business, and corners often get cut to maximize profitability, putting the bottom line ahead of patient care. When you suffer needless injury because of the wrongful acts of medical personnel, you have the right to seek compensation for your losses through a medical malpractice lawsuit.

What Is Medical Malpractice?

Medical malpractice, also known as medical negligence, involves a failure by medical personnel to meet the expected standard of care. Because of the specialized training that medical personnel receive, as well as the enhanced levels of competence required to do their job properly, the standard of care in medical malpractice claims is more stringent than for ordinary negligence. The standard of care expected of healthcare professionals is discussed further below.

How Common Is Medical Malpractice?

According to research conducted by the National Patient Safety Foundation and Institute for Healthcare Improvement, approximately one of every five adults in the United States has suffered from some type of medical mistake, and one in three knows someone personally who has been a victim of medical negligence. A 2008 study calculated the annual cost of medical malpractice at nearly $20 billion. Estimates are that more than 85,000 medical malpractice claims are filed every year in the United States.

What Are the Most Common Types of Medical Malpractice?

Medical malpractice occurs any time a medical practitioner breaches the duty of care owed to a patient. That can take a variety of forms, including:

  • Failure to diagnose or misdiagnosis—Diagnosis errors can involve various issues, such as failing to order necessary testing, ordering the wrong diagnostic tests, misreading test results, or failing to notify a patient of a diagnosis in a timely manner.
  • Failure to provide proper care or treatment—A doctor or other medical person may fail to prescribe or deliver essential medical service necessary to effectively treat an injury or illness.
  • Anesthesia errors—A medical malpractice claim can be based on failure to determine potential allergies, administration of an incorrect dosage, or failure to monitor a patient while under anesthesia.
  • Pharmaceutical or medication errors—This typically involves prescribing the wrong medication or wrong dosage or failing to prescribe necessary drugs.
  • Surgical mistakes—A surgeon may operate on the wrong body part, perform the wrong surgical procedure, fail to use appropriate care while performing an operation, or leave surgical tools or implements in a body cavity.
  • Birth injuries—Birth injuries can be caused by errors in the delivery room, such as the following:
    • Errors extracting the fetus using forceps or suction—Such errors can cause Erb’s palsy, cerebral, palsy, and shoulder dystocia.
    • Failure to properly monitor the mother or the fetus—One error of this type is failure to timely diagnose the need for a C-section, which can prevent oxygen from getting to the unborn child’s brain, thereby causing serious injury.

Who Can Be Sued for Medical Malpractice?

Medical malpractice is not limited to physicians. Potential defendants include anyone whose scope of employment involves the provision of medical care, including nurses, hospitals, urgent care facilities, and emergency responders.

What Must You Show to Prove Medical Malpractice?

Medical malpractice is a personal injury claim that alleges a form of negligence. A party seeking compensation must show the following: breach of the medical standard of care, causation, and actual losses.

  • Breach of the Medical Standard of Care—In an ordinary negligence claim, an injured person need only show that the actions of the defendant were not consistent with what an ordinary person of average prudence would do. With a medical malpractice claim, an injured person must show that the defendant did not provide the level of care that a reasonably competent and skilled healthcare professional, with similar training and experience, would provide in the same medical community.

    For example, if a patient has knee surgery, the medical standard of care is that which a reasonably skilled and competent knee surgeon would provide, given the type of injury to the knee and the surgery required. The applicable standard of care also would take into account the type of care a knee surgeon with the same background and experience would provide in the same medical community.

    Because the standard of care in medical malpractice claims differs from that of other personal injury claims, it is often a critical issue in medical malpractice litigation, with experts providing testimony on both sides of a case.

  • Causation—There are two types of causation that must be proven in any personal injury claim, including a medical malpractice action. The injured party must show actual cause, i.e., that the injury would not have been suffered had the defendant provided the expected standard of care. (This is also known as “but for” causation—the injury would not have occurred “but for” the negligence.) In addition, the injured party must show “proximate cause,” which means that the injury suffered was “reasonably foreseeable” as a consequence of the breach of the duty of care. In other words, the injury is one that could be expected to occur as a result of the defendant’s negligence, as opposed to some kind of freak accident.
  • Actual Losses—The plaintiff must have sustained actual injury or damages. Furthermore, a person may only recover actual losses. Any expense or loss covered by insurance will not be recoverable by the injured party in a medical malpractice claim.

Is Compensation Limited in a Medical Malpractice Claim?

Medical malpractice damage awards are more heavily regulated than any other type of damage claim, with more than half of all states imposing some sort of cap, either on economic or non-economic damages. Six states currently put a “total cap” on both combined. The ceilings on damage awards vary from state to state.


When you seek medical treatment for an injury or illness, only to suffer additional trauma because of the negligent act of a medical professional, you have the right to seek full and fair compensation for your losses in a medical malpractice claim. To successfully prove medical malpractice in court, you must show that you suffered damage because the level of care provided did not meet that reasonably expected of a competent medical professional with similar training and experience in the same medical community.

Medical malpractice claims include birth errors, surgical mistakes, failure to diagnose or misdiagnosis, anesthesia errors, medication mistakes, and other failure to provide appropriate care.

About half of all states put a ceiling on damage awards available to victims of medical malpractice.

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