Medical Malpractice FAQ

A look at medical malpractice lawsuits, common treatment errors, medical malpractice reform efforts, and more.

What kinds of mistakes can amount to medical malpractice?

Medical malpractice occurs when a patient is harmed because a doctor (or other medical professional) failed to perform competently under accepted standards of medical care. In order to prove medical malpractice, it must be shown that the doctor was negligent in some way that is, not reasonably skillful and careful in treating the patient. A doctor's negligence might be established by proof that the doctor:

• failed to diagnose (or misdiagnosed) an illness or condition
• did not follow proper medical procedure in treating a patient, or
• forgot to warn a patient of known risks of a procedure or prescription drug.

There are other elements that must be established in a medical malpractice claim including the existence of a doctor-patient relationship and damages linked to a resulting injury. To learn more about medical malpractice claims (including what types of actions constitute malpractice), see Nolo's article Medical Malpractice Basics.

What kinds of damages (money awards) are available to the plainitff in a medical malpractice lawsuit?

For patients who have suffered an injury due to medical malpractice, three kinds of damages are usually available through a lawsuit:

• General damages. This is compensation for the suffering caused by the malpractice things like physical and mental pain and suffering, loss of enjoyment of life, and loss of consortium.
• Special damages. These are the more quantifiable expenses linked to the malpractice. Special damages include medical bills and reimbursement for lost income due to time missed at work.
• Punitive damages. These damages are meant to punish a physician or medical facility for conduct that is seriously egregious (where a patient was intentionally harmed, for example). Punitive damages are rare in medical malpractice cases.

If a patient died as a result of medical malpractice, the patient's heirs may recover for 1) damages that occurred from the time of the malpractice up until the patient's death, and 2) the family's future economic loss due to the patient's death. To learn more about damages in medical malpractice lawsuits, see Nolo's article Damages in Medical Malpractice Cases.

If I had known the risks associated with my surgery, I wouldn't have agreed to the procedure. Can I sue my doctor?

It depends on what those risks were. Doctors must fully inform their patients about serious risks involved in any proposed medical procedure or treatment so that the patient can decide whether to go forward, in light of the danger. In both medical and legal terminology, this is called "informed consent." However, doctors don't have to inform patients about every single risk involved in a procedure, only the important ones. In determining what a doctor must disclose in terms of the risk linked to certain treatment, states generally use one of two standards:

• Would another competent doctor have disclosed the risk?
• Would a normal patient have made a different decision if the risk was disclosed?

In some situations (like emergencies), a doctor is not required to get informed consent before treating a patient. To learn more about what constitutes informed consent and when it is required, see Nolo's article Medical Malpractice: Informed Consent.

If my doctor makes a mistake while treating me in a hospital, can I sue the hospital?

Probably not. For the most part, hospitals are not responsible for a doctor's medical malpractice if the doctor is not an employee of the hospital (most doctors are independent contractors and not employees). There are several exceptions to this rule.

• A hospital might be responsible for a non-employee doctor's medical malpractice if the hospital does not make clear that the doctor is not an employee. But most hospitals avoid this problem by informing patients of the doctor's non-employee relationship in admission forms.
• When a patient is treated in an emergency room, the hospital often does not have the opportunity to inform the patient about the doctor's non-employee status. Because of this, hospitals are often responsible for an ER doctor's medical malpractice.
• Some states allow patients to sue hospitals for the medical malpractice of a non-employee doctor if the hospital gave staff privileges to an incompetent or dangerous doctor.

To learn more about when hospitals might be liable for a doctor's medical malpractice, see Nolo's article Medical Malpractice: When Can Patients Sue a Hospital for Negligence?

I was injured because a nurse gave me the wrong drug. Who can I sue?

Nursing malpractice happens when a nurse does not fulfill duties in a way that a normally competent nurse in the same situation would and that negligence injures the patient. As in medical malpractice, however, not every mistake or mishap rises to the level of negligence.

If a nurse commits malpractice while caring for a patient, hospitals are often (but not always) on the hook. A hospital may be legally and financially responsible for a nurse's negligence if:

• the nurse was an employee of the hospital
• the nurse was fulfilling a job duty when the patient was injured, and
• a non-employee doctor did not maintain proper control over the nurse.

An attending doctor may also be responsible for the nurse's actions if:

• the doctor was present, and
• the doctor had control to prevent the nurse's negligence.

To learn more about what types of actions constitute nursing negligence, and when the hospital or attending doctor is responsible, see Nolo's article Nursing Malpractice.

I've been hearing a lot about medical malpractice reform lately. What are the key arguments for and against reform?

In recent years, doctor groups, insurance companies, and some patients have criticized medical malpractice litigation, arguing that it's expensive, unpredictable, and inefficient. These critics claim that medical malpractice lawsuits have caused doctor and hospital liability insurance rates to skyrocket, which in turn drives up health care costs and forces some doctors to stop practicing (or avoid performing certain procedures like delivering babies). Reformers argue that the threat of malpractice claims also increases the use of "defensive medicine," placing additional costs and burdens on the health care system.

Those in favor of preserving the status quo of medical malpractice law counter that the recent surge in medical malpractice litigation is tied to an increase in treatment errors by doctors and other caregivers. They point out that liability insurance premiums (once adjusted for inflation) are lower than the previous decade for all but a few doctors that practice in certain specialty areas. In addition, they argue that many factors contribute to liability insurance rate increases and the higher cost of healthcare and to blame it all on medical malpractice litigation is to ignore the true reasons for the health care crisis in our nation.

What are some proposals for reforming medical malpractice law?

Ideas for reforming the medical malpractice litigation system are as varied as they are numerous. Some of the major proposals that have emerged in recent years include:

• Establishing special medical malpractice courts where a medically-trained judge hears and decides cases. Critics of this proposal point out that it would remove litigants' right to a jury trial.
• Capping damages. Many states have already put this reform into effect. Some limit the total amount of damages a plaintiff can recover. Others cap only general damages (pain and suffering, emotional distress, and the like), but not special damages (medical bills, lost income). Many states also limit the amount that a patient's attorney can receive. (To learn about the different types of damages in medical malpractice cases, see Nolo's article Damages in Medical Malpractice Cases.)
• Shortening the time period in which a patient must bring a lawsuit (the statute of limitations) after being injured.

For more information on personal injury claims, see How to Win Your Personal Injury Claim, by Attorney Joesph L. Matthews (Nolo).