Are You a Legal Professional?

Medical Malpractice Overview

Medical malpractice is negligence committed by a medical professional. While many accidents occur in hospitals and in the practice of medicine in general, some of them could have been avoided. When a physician makes a preventable error that results in injury, the patient may file a medical malpractice suit for damages.

Elements of a Medical Malpractice Claim

For negligence to be "actionable" (having all the components necessary to constitute a viable cause of action -- and thus a legitimate lawsuit), the following elements must exist:

  • There must be a duty owed to someone
  • There must be a breach of that duty
  • The breach of that duty must result in harm or damage that is proximately caused by that breach

The simplest way to apply the concept of proximate cause to medical malpractice is to ask whether, "but for" the alleged negligence, the harm or injury would have occurred. If the injury still would have occurred regardless of the alleged act of malpractice, then there is no valid claim. See Elements of a Negligence Case for more details.

The Duty of Care

A physician must owe a duty of care to patients before his or her competency in performing that duty can be judged. In U. S. jurisprudence, a person has no affirmative duty to assist injured individuals in the absence of a special relationship with them (such as doctor-patient, attorney-client, guardian-ward, etc.). However, once a doctor voluntarily decides to assist others or come to their aid, he or she becomes liable for any injury that results from any negligence during that assistance. Once the requisite doctor-patient relationship is established, the doctor owes to the patient the duty of care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances.

Tort Reform

Much of the reasoning behind tort reform is the notion that medical malpractice lawsuits are one of the biggest drivers of high medical costs. However, a study published by the Congressional Budget Office in 2009 concluded that limiting malpractice liability would limit health care spending in the U.S. by just one-half of 1 percent. Still, fear of being sued has led many doctors to perform what is called "defensive medicine," the act of ordering extra tests and using expensive imaging devices in order to provide a defense for any possible lawsuit by the patient.

More than half the states now limit damage awards and many have established limits on attorney fees. Moreover, almost all states now have two year statutes of limitations for standard claims, and have eliminated joint and several liability in malpractice law suits. At the federal level, Congress still struggled with the notion of federal legislation that would preempt all existing state laws governing medical malpractice lawsuits.

Next Steps
Contact a qualified medical malpractice attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

Help Me Find a Do-It-Yourself Solution