What Counts as Medical Malpractice?

Medicine involves risk, and not every complication is someone's fault. Malpractice is a specific legal claim with specific elements.

The four elements

1. Duty: a doctor-patient (or provider-patient) relationship existed.
2. Breach: the provider did not do what a reasonably careful provider in the same field would have done under similar circumstances, the "standard of care."
3. Causation: the breach caused the injury, not the underlying illness.
4. Damages: the patient suffered real harm, such as added medical costs, lost income, pain or disability (Cornell LII).

Common examples

• Misdiagnosis or delayed diagnosis, such as a missed cancer or heart attack
• Surgical errors, including wrong-site surgery or instruments left in the body
• Medication errors: wrong drug, wrong dose, or dangerous interactions not caught
• Birth injuries caused by mismanaged delivery; see birth injury claims
• Failure to get informed consent, where the patient was not told about material risks that a reasonable patient would want to know (Cornell LII)
• Anesthesia errors
• Failure to follow up on abnormal test results

What is usually not malpractice

• A known risk of a procedure that was properly disclosed and occurred despite proper care
• A treatment that did not work, if the choice was reasonable
• Rudeness or poor bedside manner without injury

Experts are essential

Because the standard of care is technical, malpractice cases almost always need a qualified medical expert. NCSL reports that 28 states require an affidavit or certificate of merit from a medical expert before a malpractice case can proceed. Expert review is a major reason these cases are expensive and why lawyers screen them carefully.

Deadlines and caps

Malpractice deadlines are often shorter or more complicated than other injury claims. Many states use a "discovery rule" that starts the clock when the injury was or should have been discovered, combined with an outer limit (statute of repose). Some states require a pre-suit notice or a review panel. Many also cap non-economic damages in malpractice cases.

What to do if you suspect malpractice

1. Request copies of your complete medical records; you have a right to them.
2. Write down a timeline: symptoms, visits, what you were told.
3. Get a second opinion about your current care.
4. Do not wait. Talk to a personal injury lawyer who handles medical malpractice early, because expert review takes time and deadlines are strict.

If a loved one died, see wrongful death lawsuits.

Sources

1. Cornell Law School LII: Medical malpractice
2. Cornell Law School LII: Informed consent
3. NCSL: Medical liability and malpractice merit affidavits and expert witnesses