What Is Medical Malpractice?
Medical malpractice is negligence on behalf of a medical professional that causes someone to suffer harm.
To have a valid medical malpractice case, you must prove the following:
- A medical professional acted in a way that another medical professional would not have in the same situation (i.e., failed to uphold the standard of care).
- You suffered harm due to their action or inaction.
Examples of Medical Malpractice
- Misdiagnosis, delayed diagnosis, or missed diagnosis
- Surgical errors (e.g., surgery on the wrong person or wrong body part, leaving a surgical tool inside a patient, anesthesia errors)
- Prescription drug errors (e.g., wrong medication, wrong amount of medication, failing to check for potential reactions with other drugs the patient is taking)
- Birth injuries (e.g., shoulder dystocia, vacuum extraction injuries, cerebral palsy)
- Failure to obtain informed consent
Medical Malpractice vs. Medical Negligence
In some cases, an error by a medical professional does not constitute medical malpractice. The medical professional’s error must be something that does not uphold their field’s standard of care (i.e., another doctor in a similar situation would not have taken that action), and it must have caused you harm (e.g., injury, medical bills, lost wages, pain and suffering).
Can You Only Sue a Doctor for Medical Malpractice?
No. In many cases, you can sue anyone involved in your injury for malpractice. For example, if your doctor injures you during surgery, you might be able to hold anyone in the room liable.
Medical professionals you could hold liable for medical malpractice include:
- Surgical techs
- Nurse practitioners
- Physician’s assistants
- Dental hygienists
- Psychologists and psychiatrists
You can also sue a hospital, nursing home, or another facility for medical malpractice. In cases where a pharmaceutical company’s negligence caused your injuries, you can sue the company for medical malpractice.
Our team can help you determine who you can sue for medical malpractice.
Is a Misdiagnosis Medical Malpractice?
Whether a misdiagnosis is a medical malpractice depends on the situation. In some cases, it is only medical negligence. Misdiagnosis is medical malpractice if you can establish the following:
- A medical professional misdiagnosed you.
- The misdiagnosis caused you some sort of harm (e.g., failure to treat the actual condition, unnecessary treatment for a condition you do not have).
- Another medical professional in a similar situation would have acted differently.
For example, you go to the emergency room (ER) complaining of dizziness, shortness of breath, neck pain, pressure and pain in your chest. The doctor dismisses your symptoms and diagnoses the episode as an anxiety attack. The symptoms do not subside and you go back to the ER where you are later diagnosed with a heart attack. This misdiagnosis caused you to sustain irreversible heart damage.
When a Misdiagnosis Is Not Malpractice
If the misdiagnosis had not caused any damage, it would just be an example of medical negligence. Consider another example:
Your doctor diagnoses you with stomach cancer instead of ovarian cancer. However, days later, they review your scans and realize their mistake. No lasting harm occurred, and you were able to get the treatment you needed. This is not considered malpractice.
Our team can help you determine whether a medical professional’s action or inaction is considered malpractice.
Can I Recover Damages from Medical Malpractice If I Signed a Consent Form?
Yes, you can recover compensation for your damages even if you signed a consent form. Signing a consent form means that you consented to the procedure, not to your injury.
To recover compensation, you must prove:
- You have a valid doctor-patient relationship.
- The medical professional failed to uphold their industry’s standard of care (i.e., another medical professional in the same field in a similar situation would not have acted as they did).
- Their actions caused you harm. For example, your doctor failed to check your charts before performing surgery. They performed surgery on your right (instead of left) leg.
What Is Informed Consent?
Informed consent is required before almost every procedure or surgery. Patients must give consent to perform a certain procedure or treatment with knowledge of all possible consequences and any alternatives. Doctors must give patients the following information:
- The condition that requires treatment
- Information about the suggested treatment or procedure
- Expected results
- Possible benefits
- Possible risks and complications
- Any alternative treatments
Doctors must also disclose any personal or economic interests and any diagnostic tests that could eliminate conditions, per Gates v. Jensen and Jandre v. Physicians Insurance Co. of Wisconsin.
Are There Any Situations Where Informed Consent Is Not Required?
Informed consent is not required in an emergency situation when a decision must be made quickly, and no one is there to speak for the patient. Doctors can also proceed without informed consent when “the benefit of treating the patient outweighs any potential harm of the treatment,” according to the AMA Journal of Ethics.
Doctors are also not required to discuss any risks that would not occur if the procedure was performed properly (i.e., a medical professional does not need to explain the risks associated with a mistake made during a procedure).
If a medical professional performed a procedure on you without getting your informed consent, you may have grounds for a medical malpractice case.