What is Medical Malpractice?

Start with this overview that includes the legal definition of medical malpractice.


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When doctors and other health care providers provide sub-standard treatment to patients, medical malpractice law provides a way for patients to recover monetary compensation for any resulting injuries. However, doctors are not liable for all harm suffered by their patients, or for just any less-than-favorable outcome after the provision of medical treatment. Read on to learn more.

The Legal Definition of Medical Malpractice

Medical malpractice is said to occur when a doctor or other health care provider treats a patient in a manner that deviates from the medical standard or care, and the patient suffers harm as a result. This "definition," such as it is, raises a few key issues. The biggest issue in most medical malpractice cases turns on proving what the medical standard of care is under the circumstances, and showing how the defendant failed to provide treatment that was in line with that standard.

The "medical standard of care" can be defined as the type and level of care that a reasonably competent health care professional -- in the same field, with similar training -- would have provided in the same situation. It usually takes an expert medical witness to testify as to the standard of care, and to examine the defendant's conduct against that standard.

Common problems that expose doctors to liability for medical malpractice include mistakes in treatment, improper diagnoses, and lack of informed consent. We’ll take a closer look at each of these scenarios in the sections below.

Mistakes in Treatment

When a doctor makes a mistake during the treatment of a patient, and another reasonably competent doctor would not have made the same misstep, the patient may sue for medical malpractice.

Although some treatment mistakes can be obvious (such as amputating the wrong leg), others are generally less apparent to lay people. For example, a doctor might perform surgery on a patient’s shoulder to resolve chronic pain. Six months later, the patient might continue to experience pain in the shoulder. It would be very difficult for the patient to determine whether the continued pain is attributable to a mistake in treatment or to some other cause that doesn’t amount to malpractice.

For this reason, medical malpractice cases often involve expert testimony. One of the first steps in a  medical malpractice case is for the patient to consult a doctors who has experience relevant to the patient’s injury or health issue. Usually under the guidance of a medical malpractice attorney, the doctor will review the medical records in the case and give a detailed opinion regarding whether malpractice occurred.

Improper Diagnoses

A doctor’s failure to properly diagnose can be just as harmful to a patient as a slip of the scalpel. If a doctor improperly diagnoses a patient when other reasonably competent doctors would have made the correct medical call, and the patient is harmed by the improper diagnosis, the patient will usually have a good case  for medical malpractice.

It is important to recognize that the doctor will only be liable for the harm caused by the improper diagnosis. So, if a patient dies from a disease that the doctor improperly diagnoses, but the patient would have died equally quickly even if the doctor had made a proper diagnosis, the doctor will likely not be liable for malpractice. On the other hand, a medical malpractice case would probably be viable if a proper diagnosis would have extended the patient’s life..

Lack of Informed Consent

Patients have a right to decide what treatment they receive. Doctors are obligated to provide sufficient details about treatment to allow patients to make informed decisions. When doctors fail to obtain patients’ informed consent prior to providing treatment, they may be held liable for malpractice.

Treatment Against a Patient’s Wishes. Doctors might sometimes disagree with patients over the best course of action. Patients generally have a right to refuse treatment, even when doctors believe that such a decision is not in the patient’s best interests. A common example of this is when a patient has religious objections to a proposed course of treatment. When these disagreements occur, doctors cannot provide the treatment without the patient’s consent. Successful treatment will not protect the doctors from liability. 

The Uninformed Patient. Patients have a right to make decisions about their own treatment. But that right is of little value if they are uninformed about the benefits and risks of proposed treatment. Therefore, doctors have an obligation to provide sufficient information to allow their patients to make informed decisions.

For example, if a doctor proposes a surgery to a patient and describes the details of the procedure, but fails to mention that the surgery carries a significant risk of heart failure, that doctor may be liable for malpractice. Notice that the doctor could be liable even if other reasonably competent doctors would have recommended the surgery in the same situation. In this case, the doctor’s liability comes from a failure to obtain informed consent, rather than from a mistake in treatment or diagnosis.

The Emergency Exception. Sometimes doctors simply do not have time to obtain informed consent, or the situation makes it unreasonable. Medical malpractice law assumes that patients in urgent need of medical care who are incapable of providing informed consent would consent to life-saving treatment if they were able to do so. Thus, patients who receive treatment in emergency situations generally cannot sue their doctors for failure to obtain informed consent.

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