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What is Medical Malpractice?


According to a 2016 study conducted at John Hopkins University, medical malpractice is the third leading cause of death in the United States. Medical malpractice, in legal terms, is a subset of tort law that allows victims of malpractice to recover damages that result from their injury.

What is Medical Malpractice?

Medical malpractice is a legal term used for when a medical professional causes harm to a patient through negligence or omission. That could mean errors in diagnosis, treatment, aftercare or patient management. All medical malpractice cases must have three characteristics:

Violation of Standard of Care

The patient must prove that the treatment received was not consistent with standard medical treatment accepted and recognized in the industry. Specifically, the law says there are medical standards recognized as being acceptable treatment, this is known as the standard of care. A patient has the right to expect that healthcare professionals will treat them according to these standards. If it is determined that the standard of care has not been met, then negligence can be established.

Patient Suffered from Said Violation

It must be proven that the patient suffered from an injury directly caused by the healthcare worker’s negligence. An unfavorable outcome by itself is not medical malpractice. Instead, the patient must prove that negligence caused the injury. If there is an injury without negligence, or negligence cannot be proven to have caused the injury, there is no case.

Violation Caused Significant Injury

The patient must prove that the injury suffered resulted in significant damages such as disability, unusual pain, suffering, hardship, loss of income or significant medical bills. If the damages are small, the cost of pursuing the case may not be worth it.

Examples of Medical Malpractice

Medical malpractice cases vary greatly. To get an idea of what can lead to medical practice, these are examples:

  • Improper medication or dosage
  • No follow-up or aftercare
  • Premature discharge
  • Disregarding patient history
  • Failure to order testing
  • Failure to recognize symptoms
  • Failure to diagnose or misdiagnosis
  • Misreading laboratory results
  • Unneeded surgery
  • Surgical errors

As you can see, examples of medical malpractice range widely and no one healthcare professional is immune from it. Some medical professionals are at higher risk, such as a surgeon, but absolutely anyone in the medical field can be sued for medical malpractice. This includes psychologists, anesthesiologists, nurses and even physical therapists. Therefore, anyone practicing medicine or treating a patient should have medical malpractice insurance coverage. All healthcare facilities and physicians working in private practice should have malpractice insurance.

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How Does a Medical Malpractice Lawsuit Work

As previously mentioned, the patient and his or her attorney must prove that the healthcare professional was negligent and caused an injury from which the patient greatly suffered. To sue for medical malpractice, the patient and his attorney must do a formal investigation and officially file the lawsuit. Once filed, another investigation, known as pretrial discovery, will begin. This investigation will include:

  • A written discovery period where documents and written statements and affidavits are collected in connection with the case.
  • Depositions of the parties and lay witnesses involved in the case, testifying under oath.
  • Depositions of expert witnesses who will share their own expertise regarding the specifics of the case.

Once the discovery phase is complete, medical malpractice lawsuits usually move to the negotiation and settlement phase. This is preferred by the healthcare worker to avoid trial, and sometimes the patient wants to avoid trial as well. However, if a settlement is not reached, the lawsuit will go to trial and the outcome, including compensation, will be determined by a jury. Typically, the doctor’s malpractice insurance policy will cover expenses related to malpractice claims, including court costs, doctor malpractice lawyer fees, arbitration costs, and settlement amounts for damages, whether they are punitive or compensatory. If you’re a doctor wondering how to avoid a messy trial, check out our article how to win a medical malpractice lawsuit.

How Doctors Can Protect Themselves from Malpractice

There are a number of ways for doctors to protect themselves from malpractice and job-related lawsuits. Perhaps the most important way for doctors to defend themselves is to ensure that they have current insurance policies covering all possible lawsuit scenarios. This section will break down the various ways that doctors can protect themselves, from having malpractice insurance, to making sure that their practice is in order.

Doctor Malpractice Insurance

Malpractice insurance for doctors refers to a professional medical liability insurance that protects doctors from malpractice lawsuits. Most states and medical hospitals require medical malpractice insurance as a requirement to practice. In fact, it is rare to find attending physicians without malpractice insurance given the prevalence of malpractice lawsuits. The average malpractice insurance cost is around $7,500 a year, but it can vary based on practice field. Surgeons pay between $30,000 and $50,000 annually while other doctors can expect premiums of $4,000 and $12,000 yearly.

Insure Yourself Against All Risks

For doctors entering private practice, you must remember that, on top of potential malpractice claims, a practice can also face risks like those associated with cyber liability or compliance with HIPAA (Health Insurance Portability and Accountability Act). While some doctor malpractice insurance will cover these exposures, many do not. It is advisable to add a separate policy as needed to protect yourself against these and other similar risks.

Manage Employment Risk

Conflicts related to employment law are a leading risk for medical practices and other businesses. As a result of the Covid-19 pandemic, this risk has been magnified as offices across the country are forced to manage ongoing issues related to vaccine mandates, mask usage, and quarantine rules. Doctor practices must have uniform policies in place and ensure adherence to avoid lawsuits.

Keep All Paperwork in Order

It is essential for doctors to keep all of their paperwork in order and up-to-date because you never know when you will need to provide these documents related to a medical malpractice claim or some other practice related lawsuit. All paperwork would be up-to-date, stored in a safe location, and easily accessible. In addition to keeping all patient files and paperwork in accordance with state and federal laws, you should keep other important documents in order as well, including:

  • employment manuals and handbooks
  • purchase agreements
  • insurance policies
  • third-party business contracts
  • leases
  • succession, continuation, and crisis management plans
  • employee documents
  • required compliance and licensing paperwork

Minimizing Doctor Malpractice Risk

Mistakes happen and it is rare that anyone in the field of medicine, particularly doctors, can avoid medical malpractice lawsuits for their entire careers. While nothing can totally prevent the horrible tragedies that are bound to occur in healthcare settings, there are steps you can take to minimize risks. When it comes to medical malpractice, knowledge is power. Use these tips to help minimize the damage that can be caused by a malpractice lawsuit and make sure that you are adequately protected, through insurance and proper planning, when you inevitably are faced with a malpractice claim.