Medical Malpractice vs Medical NegligenceMedical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a way that deviates from the accepted medical standard of care. Negligence becomes medical malpractice, and the basis of a medical malpractice lawsuit, when it results in undue injury to a patient. On the other hand, medical negligence does not always result in injury to the patient. Doctors must take the Hippocratic Oath, which is a promise that they will treat their patients to the best of their ability, and to the accepted medical standard of care, so as to do no harm to their patients. If this oath is broken, a medical professional is negligent.
Most negligence incidents that usually result in injury and a medical malpractice claim are the following:
- Failure to Diagnose in Time
- Surgical Error
- Failure to Follow Up With Treatment
- Failure to Treat in a Timely Manner
- Anesthesia Error
- Medication or Prescription Error
Establishing a Medical Malpractice ClaimInjury and Causation are the two legal concepts required for a medical malpractice claim. First, an injury must be established by an expert medical witness (usually someone who works in a similar capacity to the health professional allegedly negligent). Second, causation must next be established, which is the relationship between the negligent medical treatment and the injury to the patient. Again, an expert medical witness must determine that the negligent medical treatment directly caused an injury to the patient. As well, it must be established that, if the negligence had not taken place, the injury would have been avoided.
An experienced medical malpractice lawyer can analyze medical records and all tests and studies such as MRI, CAT Scan, pathology studies, etc. necessary to determine your medical malpractice claim.
The amount of compensation you may receive by a medical malpractice lawsuit is directly related to the extent of the injury, or damages. The latter typically includes all the medical costs associated with your injury, any lost income due to an inability to work, future lost earnings caused by a medical injury or disability, as well as damages such as pain and suffering.
Medical Malpractice Law by StateMedical malpractice laws vary by state. For example, in February 2010, the Illinois Supreme Court overturned the state's five-year-old medical malpractice law because it limited compensation to injured patients for pain, suffering and other non-economic harms. The law established caps of $500,000 for non-economic damages in verdicts against doctors and $1 million in cases against hospitals.
According to the American Medical Association, 30 states have laws that limit non-economic damages, although the caps and circumstances for imposing them vary widely. Courts in 16 states have upheld the laws, while those in 11 states have overturned them.
State laws also vary regarding how patient negligence—known as comparative negligence-- is applied to compensation for a medical injury. The concept of comparative negligence, as it's known in tort law, is that if you are 50 percent responsible for your injury, you may only recover 50 percent of the associated damages in an injury claim. The defendant in a medical negligence claim will generally try to use contributory negligence as a defense. However, medical negligence fault is almost always caused by the doctor or medical professional, and cases of contributory negligence are rare.
A health professional is not personally liable for a medical malpractice claim due to mistakes, inadvertence, or medical negligence. But knowingly signing a false or misleading certification or signing with any disregard for the truth can lead to criminal prosecution, and/or civil and administrative penalties.
Medical Malpractice StatisticsA study conducted in 1990 by the Harvard School of Medicine estimated that some three percent of patients treated in New York State Hospitals suffered as a result of some kind of medical mistake which resulted in a serous injury.
In 1999, a study by the Institute of Medicine of the National Academy of Sciences estimated that as many as 98,000 patients may be killed each year in hospitals alone as a result of medical errors. In the same year, state medical boards reported fewer than one-half of 1 percent of the nation's doctors face any serious state sanctions, totaling 2,696 serious disciplinary actions a year.
Public Citizen, the non-profit consumer advocacy organization, estimates that each year 1.3 million injuries are caused by professional negligence, and that more than two thirds of such injuries are preventable.
In a 1999 report, The New England Journal of Medicine found that more than a third of the doctors they surveyed said they or their family members had experienced medical errors, most leading to serious health consequences.
Medical Malpractice AttorneysA number of medical malpractice attorneys handle specific medical malpractice claims such as misdiagnosis of cancer, anesthesia or surgical error, medication or prescription error. Some attorneys only handle medical negligence. All medical malpractice lawsuits are complex and many are technical; it is imperative that you seek an appropriate lawyer for your case.
Medical Malpractice Legal HelpIf you or a loved one has suffered damages due to malpractice, please click the link below to send your complaint to a lawyer to evaluate your claim at no cost or obligation.
Last updated on May-7-15