Medical Malpractice Claim FAQ
Medical malpractice is a cause of action related to negligence in providing health care. While outcomes are not always guaranteed -- for instance, some surgeries are known to be risky and may result in complications -- malpractice occurs when a doctor fails to perform to the standards of his or her profession. A doctor who leaves a scalpel inside a patient may be sued for malpractice, for example.
Below are answers to the most frequently asked questions about medical malpractice. See FindLaw's Medical Malpractice section for additional articles.
Q: What is a medical malpractice claim?
A: A medical malpractice claim is a claim of negligence committed by a professional health care provider -- such as a doctor, nurse, dentist, technician, hospital or hospital worker -- whose treatment of a patient departs from a standard of care met by those with similar training and experience, resulting in harm to a patient or patients.
Q: Does someone who is not satisfied with the results of his or her surgery have a viable medical malpractice claim?
A: In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not necessarily mean negligence occurred. To succeed in a medical malpractice case, a plaintiff has to show an injury or damages that resulted from the doctor's deviation from the standard of care applicable to the procedure.
Q: What should I do if I think I have a medical malpractice claim?
A: You should talk to a lawyer who specializes in such cases, as soon as possible. Tell the attorney exactly what happened, from your first visit to the doctor or other health care provider, through your last contact with him or her. If possible, obtain your medical records and bring them to your first meeting with the attorney. There are time limits governing how long someone may wait to bring a medical malpractice claim, so time is of the essence.
Q: What is "informed consent"?
A: Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient of all the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.
Q: Do I have a case against a doctor who prescribed me a drug for treatment, but failed to tell me it was part of an experimental program?
A: Your physician had a duty to tell you that the drug was part of an experimental program, and you had the right to refuse to participate in it. You may have grounds for an action against your doctor based on his/her failure to obtain your "informed consent" relative to this treatment.
Q: If the consent form I signed prior to a procedure is considered valid, can I recover any damages in a medical malpractice claim against my doctor?
A: Yes, you still may be able to recover damages. A consent form does not release from liability a physician who was negligent in performing a medical procedure. If you can establish that your doctor deviated from the applicable standard of care in performing the procedure, and you were injured as a result, you may still recover against him/her. You may also have a claim that the procedure the physician performed went beyond the consent you gave, in which case the doctor might even be liable for battery.
Q: How does a jury determine if a doctor's actions were negligent?
A: A jury will consider the testimony of experts, usually other doctors, who will testify whether they believe your physician's actions followed standard medical practices, or fell below the accepted standard of care.
Q: What is a "Certificate of Merit?"
A: One obstacle plaintiffs in many states may have to overcome before they can even file a medical malpractice claim against a health care professional is the requirement that they file what is commonly known as a "certificate of merit." In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff's health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff's action has merit.
Q: I'm not sure if I have a valid claim but I suspect my doctor was negligent. How do I find out whether I have a medical malpractice claim?
A: As if the intracacies of the law weren't complex enough, medical malpractice claims typically require an additional level of expertise. Additionally, you may not even know you've been injured until much later. Thankfully, patients who suspect negligence on behalf of their doctor may consult a malpractice attorney for a free claim evaluation. If they believe you have a valid claim, they will help you get started, with no obligation.