Most Commonly Asked Questions
Here we've rounded up a few of the most commonly asked questions regarding medical malpractice. Choose a link to jump right to a question and answer, or just scroll down and browse the page.
- What is "Medical Malpractice"?
- What must be shown to prevail in a medical malpractice case?
- What is the first step in pursuing a medical malpractice claim?
- Will I have to go through a trial in court before my case is finished?
- I’ve heard that lawsuits take a long time. Is that true with medical malpractice cases?
- I know lawyers can be expensive. How much do firms charge for a medical malpractice case?
- I have no idea how much money I should ask for or expect. What is typically included in a settlement?
1) What is "medical malpractice"?
Medical malpractice is a broad term that generally describes medical treatment that departs from accepted standards of health care, causing harm to a patient. Medical malpractice can include misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, and prescription errors. (To learn more about state-specific medical malpractice laws in your state, see Medical Malpractice Statutes by State and click on your state's link.)
2) What must be shown to prevail in a medical malpractice case?
Generally speaking, the claimant in a medical malpractice case must show the following:
- the existence of a doctor-patient relationship (giving rise to a legal duty of care owed from doctor to patient)
- the doctor's negligence (meaning his or her failure to provide competent care)
- a causal link between the doctor's negligence and harm to the patient, and
- damages that resulted from the doctor's negligence.
A physician owes a duty to a patient once a "doctor-patient" relationship has been formed. Such a relationship is usually formed when the physician agrees to care for the patient. Nonetheless, even if it is established that a duty existed and the health care provider breached that duty (eg. failed to meet the requisite standard of care), a claimant may not recover unless the claimant suffered injuries that were a direct result of the breach. If the breach resulted in no harm to the patient, a claimant generally has no right to recovery. (Learn more about the elements to prove in medical malpractice lawsuits.)
3) What is the first step in pursuing a medical malpractice claim?
These cases involve complex questions right at the outset -- what did the doctor do, and what should he or she have done under the circumstances, based on accepted treatment standards in the medical community? So if you think you have a valid medical malpractice case, you may want to contact an experienced medical malpractice attorney to make sure that your health and your legal rights are protected.
4) Will I have to go through a trial in court before my case is finished?
Some medical malpractice cases do progress through the court system right up through the completion of a trial -- meaning a jury verdict and a decision on whether to award damages to the plaintiff. But the majority of medical malpractice cases are settled well before this point, and some are even resolved before a formal lawsuit is filed.
5) I’ve heard that lawsuits take a long time. Is that true with malpractice cases?
Malpractice cases don’t necessarily take longer than other kinds of civil cases, not by definition anyway. But these cases often involve complex medical and legal issues -- often requiring back-and-forth among numerous expert witnesses and the digestion of reams of medical evidence -- not to mention potential liability that can extend into the millions of dollars. So it shouldn't come as a surprise if it takes a little longer to resolve your medical malpractice case than it would a car accident lawsuit over a fender bender.
6) I know lawyers can be expensive. How much do firms charge for a medical malpractice case?
Many lawyers and law firms that take on medical malpractice cases will do so on what's called a "contingency" basis. This means that an attorney will take the case and represent the client free of charge (sort of), with the understanding that the attorney will receive a percentage of any damages award paid to the client, either as a negotiated settlement or as a jury award. In many states, laws are in place to regulate the contingency percentage that an attorney may receive in a medical malpractice case. (Learn the costs of hiring a medical malpractice lawyer.)
In California, for example, an attorney may not collect more than the following in representing a medical malpractice client:
- 40% of the first $50,000 recovered
- 33 and 1/3% of the next $50,000 recovered
- 25% of the next $500,000 recovered, and
- 15% of any amount over $600,000.
7) I have no idea how much money I should ask for or expect. What is typically included in a settlement?
A negotiated settlement of a typical medical malpractice claim (or a jury award after the conclusion of a full civil trial) will include compensation for pain and suffering, payment of medical expenses for treating any harm or injury caused by the malpractice, and reimbursement for any past, present or future financial losses that you have incurred or will incur as a result of the malpractice. Depending on where you live, your state laws may include caps on the amount of certain kinds of damages. For example, the amount of non-economic damages (which includes pain and suffering) recoverable in a medical malpractice case is capped at $250,000 in California. (To determine the value of your medical malpractice case, see How Much is My Medical Malpractice Case Worth?)