Chapter One: Defining Medical Malpractice

Medical malpractice claims are professional negligence claims brought by victims, their families or their survivors when a medical professional breaches the standard of care, causing damages.

Let me break that down. First, I want to reiterate that these are professional negligence claims. Doctors usually have insurance that covers their negligence just as you have insurance for your car. It’s important to note that the hospital or organization that employs a doctor will also likely be named in a claim because it’s their employee that has been negligent and caused damage.

Now, let’s go over who brings a medical malpractice claim. Like I said, these cases are initiated by, “victims, their families or their survivors.” For example, an adult who was misdiagnosed by a doctor and, as a result, suffered life-long injuries would be able to bring a claim themselves. But if it were a child who was harmed, or a family member who passed away as a result of a doctor’s negligence, then it would be their family members who would bring claims against the medical professional. Never forget that family members often could have claims too.

You might have noticed that I’ve used the term, “medical professional.” That is because a claim could be brought against any sort of medical professional. Medical malpractice claims may be appropriate against physicians, registered nurses, nurse practitioners, psychiatrists, optometrists, podiatrists, anesthesiologists, dentists, and similar medical professionals. In short, a claim could be brought against any medical professional who commits malpractice. We aren’t just talking about your family practitioner here.

If you’ve looked online for information on medical malpractice claims, you’ve probably come across the term, “standard of care.” The standard of care is a key component of any medical malpractice case and has evolved over the years according to the rulings of various important negligence cases. As explained in an article from the Western Journal of Emergency Medicine, recent precedent essentially establishes that the standard of care is “what a minimally competent physician in the same field would do in the same situation, with the same resources.” Importantly, a medical professional may testify that another medical professional of the same field provided treatment or a level of care that was insufficient or negligent.

Sometimes, it’s not what a doctor does wrong, but what they fail to do right. A medical malpractice action may be brought for negligent acts committed by a medical professional, or for acts the professional failed to do (i.e. omissions). A non-exhaustive list of the basis for medical malpractice claims includes: failure to diagnose an injury, misdiagnosis, misreading lab results, unnecessary surgery, surgical errors, leaving something inside of the patient’s body, improper medication or dosage of medication, mistakes with follow-up or aftercare, premature discharge, and failure to obtain informed consent prior to undertaking a procedure. Depending on the facts of a particular case, all or some of these could be considered beneath the standard of care – these doctors did not reach the standard they are obligated to meet.

To be fair, the standard of care can be a bit of a moving target as doctors are expected to keep up with changes in their profession throughout their careers. Our bodies are wondrously designed by God and the scientific community is constantly collecting new information about the human body. That’s great for medical care as a whole, but that also means that medical professionals need to keep up with new information and research in their fields. Unfortunately, doctors don’t always do that. In one famous example from the 1970s, a doctor was accused of medical malpractice when he failed to diagnose a bruised child as a victim of the more-recently-recognized Battered Child Syndrome. He failed to conduct the appropriate x-rays of the child’s skull and failed to contact the proper authorities.^[2]

Something to keep in mind is that the standard of care is fact-specific. A cardiologist advising a patient with heart disease will be held to a certain standard if the patient is a 30-year-old triathlete training for her next event. But the cardiologist will be held to a different standard if the patient is a 90-year-old confined to bed-rest in hospice care. The patient is different in each example, and so the standard of care must be different, too. The standard of care will also be different if the practitioner is a cardiologist as opposed to a psychiatrist. The psychiatrist certainly doesn’t have as deep of an understanding of your heart and cardiovascular system as the cardiologist.

Proving that a medical professional was negligent is important in a medical malpractice claim, but so is proving the damage caused by the negligence. In order to prevail in a medical malpractice claim, you must prove a breach of the professional standard of care. But you must also prove that your damages were caused by that breach of care. The damages can range from disfigurement to death, with many types of harm in between. There are, in fact, different types of damages to be considered in a medical malpractice claim which we will talk about later.

Finally, this might seem silly, but one must know that in a medical malpractice claim, the alleged breach of care must occur within the scope of what the license allows the medical professional to do. For example, a medical malpractice action would be appropriate against a doctor who chose not to give antibiotics to a patient obviously suffering from sepsis, resulting in the sepsis infection spreading throughout and paralyzing the patient’s body. A medical malpractice action would not be appropriate against a doctor who failed to yield and caused an accident at an intersection on his way to the hospital. Only the first of these two examples pertains to the work the doctor is licensed to do.

Now let’s go back to the beginning. What is a medical malpractice claim?

Medical malpractice claims are professional negligence claims brought by victims, their families or their survivors when a medical professional breaches the standard of care, causing damages.

Great! Now that you know the core principles behind medical malpractice claims, we’ll dive a bit deeper.

It’s sad, and rather scary, to think about the sheer number of mistakes that medical professionals make. In the book from the Institute of Medicine’s Committee on Quality of Health Care in America entitled, “To Err is Human: Building a Safer Health System,” two large studies from 1991 on the occurrence of adverse events in hospitals are cited. After being extrapolated to the more than 33.6 million people admitted to hospitals in the U.S. in 1997, the combined findings of the studies indicated that between 44,000 and 98,000 Americans die annually “as a result of medical errors.”

However, an article from U.S. News & World Report titled, “Medical Errors Are Third Leading Cause of Death in the U.S.,” provides evidence that the number of Americans who die annually in U.S. hospitals “may be much higher.” This article cites a 2011 report from the journal Health Affairs which “calculated that just over 1 percent of hospital patients die each year because of medical errors.” That is 400,000 plus annual deaths given the more than 35 million people hospitalized every year. Furthermore, as its title suggests, the article reports that “medical errors are the third leading cause of death in the U.S., after heart disease and cancer.”

Breaking down the prevalence of medical malpractice claims provides some additional useful data. Between 2004 and 2014, the most common types of paid medical malpractice claims were error in diagnosis, errors related to surgery, and errors related to medication or treatment. Furthermore, between 1992 and 2014, “catastrophic claims,” or claims for losses exceeding 1 million dollars, made up 7.6% of medical malpractice claims. Catastrophic injury is the type of claim that we at Moseley Collins Law specialize in. Why would we specialize in such a small percentage of claims? Because we want to help those that have been hurt the worst.

Peter Moffett & Gregory Moore, The Standard of Care: Legal History and Definitions: the Bad and Good News, 12(1), W. J. Emerg. Med., 109, 112, (2011).

Landeros v. Flood, 17 Cal. 3d 399, 408 (Cal. 1976).

To Err Is Human: Building a Safer Health System, § 1 (Linda T. Kohn et al. eds., 1999).

Steve Sternberg, Medical Errors Are Third Leading Cause of Death in the U.S., U.S. News & World Report (May 3, 2016).

Adam C. Schaffer et al, Rates and Characteristics of Paid Malpractice Claims Among U.S. Physicians by Specialty 1992-2014, 177(5), JAMA Intern. Med., 710, 713, (2017).