25 Things You Need To Know About Medical Malpractice

1. By The Numbers

Medical errors are the third leading cause of death in the United States.  Between 200,000 and 400,000 patients die as a result of medical errors each year.  Approximately 10 to 20 times that figure are seriously harmed but do not die from medical errors.  Less than 2% of all doctors have been responsible for half of all medical malpractice claims over the past 25 years.

2. What is the Legal Definition of Medical Malpractice?

The key to a medical malpractice claim is that the doctor or other healthcare provider breached the standard of care.  This means that the medical professional did something that was unreasonable under the circumstances.  Put another way, the medical professional chose to do something that other doctors would not have done or did not do something that other doctors would have done in the same circumstances.  In order for there to be a medical malpractice claim, the medical professional’s unreasonable conduct must have caused an injury.

3. Is There A Difference Between Malpractice and Negligence?

No.  When an average person acts unreasonably it is called negligence.  For example, when a motorist runs a red light, it is called negligence. When a professional – like a doctor –  is negligent, it is called malpractice.  But, in essence, they are the same thing.

4. Does A Bad Outcome Automatically Mean That There Has Been Malpractice?

No.  There are certain risks that are inherent to medical procedures.  Under some conditions, a physician can be reasonable in his medical care and the patient can still experience a bad outcome.

5. Is There A Time Limit To Bring A Medical Malpractice Claim?

Every state has a limitation on the time period when you can bring a medical malpractice claim.  For example, in Ohio a patient has one year to bring a medical malpractice claim.  However, there are numerous exceptions including ones based on when an injury may have been discovered or when a patient last treated with a physician.  To determine the exact time limitation for a specific case, it is important to speak with an attorney as soon as possible.

6. How Often Do Medical Errors Occur?

1 out of every 3 patients will experience a medical error during their hospital stay.

7. When Can Medical Negligence Happen?

Medical negligence can happen at any stage of the medical care.  Medical malpractice can occur before the diagnosis, during treatment or surgery, or after an illness is treated or a procedure is performed.

8. Are Some Types of Malpractice More Common Than Others?

Yes.  Although medical malpractice can occur in almost any way imaginable, the most common kinds of medical malpractice occur when there is a diagnostic error (meaning some condition or illness was misdiagnosed or was not diagnosed on time) and medication errors (meaning that the wrong medication was given, the wrong dose of a medication was given, a medication was delivered in the wrong way—e.g., IV vs. pill—or the medication interacted with another medication that was given).

9. Who Pays for A Medical Malpractice Case?

Good medical malpractice lawyers usually take cases on a contingency fee agreement.  The fee is commonly 33-40% in the industry.  The lawyer or law firm agrees to advance all expenses in the case.  The expenses usually consist of medical record retrieval fees, hiring experts to evaluate the medical records and testify, and costs of travel, lodging, and depositions.  These fees commonly exceed $100,000 on any given case.

It is called a contingency fee because the lawyer’s compensation for his time and work are contingent on the outcome of the case.  The injury or harm usually has to be substantial in order to justify the high costs of pursuing the case.

10. How Can A Patient or A Lawyer Say That A Doctor Committed Malpractice?

Lawyers consult with medical experts who review the medical records of the patient and sometimes meet with the patient in person to determine whether the doctor acted appropriately.  These medical experts usually practice in the same or similar field as the defendant doctor.

11. Will the Defendant Also Have Experts?

Yes. Both sides in a medical malpractice case will hire medical experts to determine whether the care was appropriate.  These experts commonly disagree on material issues about the case.

12. Who Decides If A Doctor Committed Malpractice?

Ultimately, a jury or a judge decides whether a doctor committed malpractice and whether the malpractice caused an injury to the patient.  If there is a bench trial, then the judge makes the decision (from the bench).  If there is a jury trial, then the jury makes the decision after deliberating.  The judge or jury will hear testimony from the patient (if alive and capable of testifying), the defendant doctor, various witnesses who know something about the case, and expert witnesses.

13. Can A Patient Be Negligent?

Yes.  Under certain circumstances a patient may be considered negligent if he or she failed to follow a doctor’s recommendations when a reasonable patient would have.  In order to be considered negligent, the patient’s own actions must have caused the injury or a part of the injury.

14. What If A Patient And A Doctor Are Both Negligent?

The final outcome depends on the state where the lawsuit is brought.

• Contributory Fault

In a true contributory fault state, if the patient is negligent at all, the patient cannot recover.

• True Comparative Fault

In a true comparative fault state, if both the patient and doctor are negligent, then the percentage of the patient’s negligence is subtracted by the total result. For example, if the jury awards $100,000 and the patient is 90% at fault, the patient is entitled to $10,000.

• Modified Comparative Fault 50%

In a modified comparative fault 50% state, the patient’s degree of fault is reduced from the total verdict, but it cannot exceed 50%.  For example, if the verdict is $100,000 and the patient is 50% at fault, then the patient receives $50,000.  However, if the patient was considered to be more at fault (i.e., 51%), then the patient cannot recover.

• Modified Comparative Fault 51%

In a modified comparative fault 51% percent state, the patient’s fault must be less than the defendant’s fault in order to be successful.  Thus, the defendant must be at least 51% at fault.  For example, if a jury awards $100,000 and the patient is 49% at fault, then the plaintiff receives $51,000.  If, however, both the patient and the doctor are 50% at fault, the patient gets nothing.

15. Who Has The Burden of Proof At Trial?

The injured patient must prove that the defendant doctor did something wrong, caused an injury to the patient, and caused physical, emotional, or financial harm.

If the doctor claims that the patient did something wrong, such as did not follow post-operative instructions or did not take medications as prescribed, the doctor has burden of proving that.

16. What is the Burden of Proof in a Medical Malpractice Trial?

The burden of proof is called a preponderance of the evidence.  This means that something is ever so slightly more likely to be true than false.

17. How Long Does A Medical Malpractice Trial Last?

A medical malpractice trial can last anywhere from a few days to several weeks depending on how complex the case is, how significant the injuries are, and how many witnesses are needed to testify.

18. How Long Will My Malpractice Claim Take?

Malpractice cases can take months to years depending on the complexity of the case.  Although the lawyers are involved in the case on a daily basis, the patients are only specifically required to be directly involved on a few occasions, which include meetings with the lawyer and law firm staff, depositions, and court hearings.  A good lawyer and law firm, however, will keep the client continually notified on the progress of the file.

19. Can Medical Malpractice Cases Be Appealed?

Yes.  Following a medical malpractice trial, either party can appeal.  The appeal has to be based on an error committed by the judge and not simply about the result. If the parties appeal, then the limited issue being appealed is decided by an appellate court (which is usually a panel of judges who were not present for the case).

20. What Happens After A Trial?

Either party can choose to appeal a result of not.  If the injured patient was successful at trial, then the defendant can (1) pay the amount of the verdict, (2) agree to settle the case for less than the amount of the verdict, or (3) file an appeal.

21. How Often Do Medical Malpractice Cases Settle Without A Trial?

The statistics show that between 20-25% of medical malpractice cases settle without a trial.  Less than 5% of cases go to trial.  The remaining cases are resolved—usually through a dismissal—without any payment being made.

22. What Can Patients Do To Lessen the Likelihood That They Will Experience Medical Malpractice?

Patients should be proactive about their healthcare, which includes learning about their medical conditions and researching how those conditions are best treated.  It is also helpful to document any symptoms as well as anything that happened before or after those symptoms emerged.  Patients should ask healthcare providers questions they feel are important, including bringing a written list of questions to the doctor.

It is also helpful—but sometimes not practical—to bring a family member or close friend with you to doctor visits.

Despite all efforts to be proactive, however, there are instances when medical malpractice is unavoidable for the patient, including errors that occur during surgery, in diagnostic failures, and medication errors.

23. Do Medical Malpractice Cases Increase the Cost of Healthcare?

No.  Medical malpractice cases do not increase the cost of healthcare in any meaningful way.  Only about .3 percent of healthcare spending in America is spent on medical malpractice, while the yearly cost of treating medical errors that could have been prevented is around $29 billion.  Medical malpractice premiums and payouts cost less than ½ of 1% when it comes to overall healthcare costs.

24. Do Legitimate Malpractice Cases Go Unexplored?

Yes. Legitimate malpractice cases go unexplored for multiple reasons.  Patients may choose not to pursue a medical malpractice case because they do not know where to turn for help, they do not that there is a strict limitation period to pursue a claim, they fear that the doctor or healthcare system will learn of the claim and refuse to treat them, they believe that it will result in an increase of medical costs to them, or they do not believe that they have the financial ability to pursue a case.

25. What Should You Do If You Believe You Have Been the Victim of Medical Malpractice?

If you believe that you or a family member has been injured because of a medical error, the best thing to do is contact a medical malpractice attorney as soon as possible.  It is impossible to know whether you have a case until the medical records have been reviewed and experts have been consulted.  There are often delays in retrieving medical records and the more time that passes, the more difficult it may be to successfully prove your case.