Let’s say that you go to the hospital for some minor surgery. It seems to go well at first, but after a few days you notice that the residual pain in the affected area of your body hasn’t really died down – in fact, if anything it seems to hurt more. So, you go back to the hospital to see if anything is wrong. “No,” the doctor tells you, before suggesting that you may be experiencing indigestion and advising you to lay off the spicy foods.

You try that. It doesn’t make any difference. Now you’re noticing redness and swelling around the incision area, it’s becoming sharply painful to move and you’re running a fever. You go back to the hospital yet again; this time they take X-rays, and make a discovery: there’s a “foreign object” inside of you, and you’re going to need emergency surgery to have it removed.

It’s a surgical clamp.

“Even monkeys fall from trees”

The story above may seem improbable, but it is based on a real-life case of medical malpractice, and is hardly the most extreme example out there. Even though medical education, training and technology have made tremendous strides over recent years, the people behind all of these advances – the doctors, nurses, and other health care professionals we interact with – are basically the same as they have always been: human beings, capable of making human mistakes no matter how well-trained and experienced they may be.

What makes medical malpractice so serious is the gravity of the stakes involved: the consequences of these human errors for you or for someone you care about can be catastrophic physically, emotionally, and financially, and can last for many years if not for the rest of your life.

What is Medical Malpractice?

Succinctly stated, medical malpractice is negligence. In the legal sense, negligence is careless behavior that negatively affects others that can be quantified in the form of money damages. Because proving a claim of medical malpractice depends on establishing a cause of action for negligence, let’s start our examination of things to consider in a negligence cause of action.

Medical malpractice causes

Medical malpractice can arise from several underlying reasons. A doctor can be tired from working too many hours, leading to fatigue-based lapses in judgment. Lack of sufficient training can lead to ignorant mistakes at any stage of diagnosis, treatment or recovery. Personal problems on the part of a health care worker can lead to things like alcohol or substance abuse at home that spill over into his or her professional habits.

Types of medical malpractice

Whatever the underlying cause might be, the act of medical malpractice itself can take several forms. Here are some of the most common ones:

Surgical errors:

Anesthesiology mistakes (too much can kill, too little can have you waking up in the middle of the surgery)
Wrong-site surgery
Operating on the wrong patient (yes, it happens)
Leaving items in the patient, like surgical sponges or even clamps
Failure to monitor the patient after surgery

Diagnosis errors:

Misdiagnosing the injury or illness
Failure to diagnose the problem, or delays in diagnosis
Failure to perform proper diagnostic tests

Medication errors:

Prescribing the wrong medication (for example, two confusingly similar drug names plus sloppy handwriting can equal being given that doesn’t treat what’s wrong, or has negative effects, or both)
Prescribing the wrong dosage

Treatment and follow-up errors:

Failure to communicate with other treatment specialists
Failure to communicate with the patient and family members
Patient neglect
Improper treatment regimens

These are by no means the only kinds of malpractice errors that can happen. Also, medical malpractice does not confine itself to hospitals and doctors’ offices, but can also happen in alternative medicine (e.g., chiropractors or midwife-assisted births), dental procedures, assisted living settings and more.

How do I make a negligence-based legal claim for medical malpractice?

Step one: the basics

Any negligence-based claim can be broken down into the following fundamental parts:

Someone owes you a duty to exercise reasonable care in what he or she is doing, lest you suffer harm.
He knows, or should know that his breach of that duty could harm to you, and breaches it anyway.
You suffer foreseeable harm as a result of that breach.

These basic elements work the same way in the medical malpractice context as they do in any other personal injury case. The patient-doctor relationship creates the duty to avoid harm; the act of malpractice is a breach of that duty; the medical professional acted unreasonably under the circumstances that led to the injury, and you suffer measurable damages.

In addition to these negligence claim fundamentals, Medical malpractice claims frequently require additional considerations to state a complete case. We’ll discuss them next.

Step two: additional requirements and considerations for medical malpractice actions

Who is a reasonable person?

One of the things that makes medical malpractice different from ordinary negligence is how it defines the term, “reasonable person.”

In an ordinary negligence-based injury case, the standard for judging the defendant’s actions is that of the “reasonable person”: would a reasonable person in the same situation have done what the defendant did to cause the harm? A reasonable person here can be someone like you, your neighbor or the allegorical “man in the street” – an ordinary member of the community.

In a medical malpractice case, however, the reasonable person is more specific: he or she is usually defined as another medical professional with training and experience similar to the defendant’s. This is understandable when you consider that the man in the street is much less likely to know whether a health care professional was acting reasonably or not in his or her decision-making and actions compared to someone with a similar grounding in training and experience.

Medical malpractice-specific claim requirements

Another difference between medical malpractice and ordinary negligence is that often the state will require you to take some additional steps before taking your case to trial, like getting an affidavit from a qualified medical professional supporting your claim and sometimes making you go through a mediation or other informal dispute-resolution procedure first. Medical malpractice lawsuits that go to trial can be time-consuming and resource-intensive for the courts as well as the parties, so many jurisdictions seek to filter out claims that have little or no chance of success or can be settled with some assistance.

How medical malpractice intersects with other laws

There is a saying in law school that, “The law is a seamless web.” In one way, what this refers to is how one legal claim can touch on multiple areas of the law, and expand into several claims. Medical malpractice is a good example of how this can happen. For example, consider the following situations:

A close relative dies as the result of a medical mistake. In addition to medical malpractice, other possible bases of legal claims include wrongful death and a survival action.
An error that caused you harm during surgery was due in part to inadequate training of the surgical staff. You may have a claim against the hospital itself under a hospital
negligence cause of action, as well as a medical malpractice claim.
Your elderly parent living at an assisted-care facility was not given his or her medications in time during a seizure episode, and suffered harm as a result. Aside from medical malpractice, many states have laws governing nursing home abuse and neglect that allow for lodging formal complaints against poorly-run facilities, or even provide for a private cause of action under those laws.

What might I recover from a medical malpractice claim?

How much your claim is worth depends on your specific circumstances. Successful medical malpractice settlements and damages awards often amount to hundreds of thousands or even millions of dollars, but no one can make you any promises of what you might recover without carefully assessing your case first.

Damages in personal injury actions, including medical malpractice claims, can be broken down into two types: direct, and indirect.

Direct damages are those that can be proven and calculated, like additional medical costs incurred as a result of the act of malpractice, lost wages, and the economic effects of permanent or temporary physical disabilities.

Indirect damages are less tangible, but still real: pain and suffering, loss of consortium or companionship, loss of parental guidance, or exemplary or “punitive” damages. These are more subjective to evaluate, and many states place dollar limits on how much you can receive for them. But they can still amount to substantial sums, and should not be overlooked.

Contact an Experienced Medical Malpractice Lawyer

This article only introduces you to the subject of medical malpractice. If you believe that you or a loved one has been the victim of a medical mistake, you can get a clearer idea of whether you have a claim, what other possible claims you may have, who may be responsible for your injuries, how to identify your damages, and how to negotiate a satisfactory settlement or properly file a legal claim are all matters that a medical malpractice attorney can help you with.

You should not delay in seeking a legal opinion for a medical malpractice claim. The longer you wait, the more difficult it can become to gather necessary evidence to support your claim, and if you wait too long your claim can be barred by the applicable statute of limitations.