Medical Malpractice

Medical malpractice occurs when a physician fails to provide the same care or medical skill as would be expected of the average medical provider in similar circumstances. It is a form of professional negligence.

What is Medical Malpractice?

Medical malpractice does not occur in every situation involving a physician’s treatment mistake. For a medical mistake to rise to the level of malpractice, the physician’s actions must cause injury and fall short of what would be expected of the average practitioner in a similar situation. If a physician defendant’s peers would have avoided making the mistake, then the physician’s medical negligence (and associated patient injuries) can be considered malpractice.

The subjective nature of this definition can be confusing. After all, how would a patient know if another physician would or would not have made the same mistake? For this reason, most successful medical malpractice suits involve mistakes that deviated from established and widely accepted guidelines for medical care.

Medical Malpractice Explained

Consider two physicians treating the same type II diabetic patient. Physician A prescribes the patient a new blood sugar controlling drug called Invokana. The patient encounters nasty side effects from the drug and wants to sue the physician for malpractice. A lawyer explains that many other physicians had prescribed the same drug in the same situation, meaning Physician A’s actions were consistent with those of his peers. Physician A did not commit malpractice.

On the other hand, Physician B prescribes the same exact patient hourly doses of high-fructose corn syrup to treat the type II diabetes. Before long, the patient has nerve damage and non-healing ulcers and realizes the prescription made things worse. After speaking to a lawyer, the patient understands that no physician in their right mind would prescribe high-fructose corn syrup as a way to control blood sugar. Physician B acted inconsistently with what would be expected of his peers, deviated from widely accepted treatment guidelines, and did commit malpractice.

Who Can File a Medical Malpractice Lawsuit?

A number of requirements must be satisfied in order to pursue legal action for a medical professional’s mistake. The incident must have involved the following characteristics to classify as medical malpractice meriting legal compensation:

  • Duty of Care: The physician and plaintiff must have had a valid doctor-patient relationship at the time of the mistake.
  • Violation of Standard of Care: The doctor must have committed an error that their physician peers would not have committed in the same situation (negligence).
  • Injury Caused by Violation of Standard of Care: The damage sustained by the patient must be directly attributable to the doctor’s deviation from standard medical treatment.
  • Injury Merits Damages: The error must have caused harm in a way that entitles the plaintiff to legal compensation (e.g., physical pain, emotional suffering, lost wages and other legal damages).

These requirements prevent frivolous lawsuits like suing a physician one simply overhears in a busy train station or at a cocktail party. They also create a common sense standard for determining the existence of malpractice. If these requirements are met, an individual can likely bring a malpractice suit against the treating physician. Even so, many malpractice cases can be difficult to prove.

For example, consider a metastatic pancreatic cancer patient whose physician makes a mistake, delaying diagnosis for a week. If the patient dies within a matter of weeks, the physician would likely argue that one week would not have mattered. Of course the patient and their loved ones will feel robbed of the opportunity to find out if the delay could have made the difference between life and death. But proving negligence in such a situation could pose a significant challenge.

In almost all cases, expert testimony regarding both the standard of care as well as the relationship between the physician’s failure and the patient’s injury must be provided by a knowledgeable healthcare professional. An experienced malpractice lawyer can help determine the validity of a claim in addition to finding medical experts capable of providing the required testimony.

Visit our Medical Malpractice FAQ page for more answers surrounding the most common questions asked about medical malpractice.

Unique Considerations in Medical Malpractice Suits

Anyone considering filing a lawsuit based upon medical malpractice needs to know a few details first.

  • Statutes of Limitations Vary State-to-State: Most states require plaintiffs to file within a certain time period after the alleged mistake.
  • Medical Malpractice Award Caps: Some states limit compensatory damages, punitive damages, and/or total damages in malpractice lawsuits.
  • Defendant Notification: State laws in some areas require plaintiffs to notify the subject of their malpractice lawsuit about the intention to file. The message may include information covering the alleged negligence and damages claimed.

State laws covering medical malpractice and associated lawsuits vary widely. You should discuss any potential case with an experienced medical malpractice attorney as soon as possible to maximize the probability of success.

Medical Malpractice Statutes of Limitations by State

Find Your State’s Malpractice Lawsuit Deadline
State Statute of Limitations for Adults
Alabama Two years from the incident or six months from awareness to a maximum of four years from the incident
Alaska Two years from awareness
Arizona Two years from the incident
Arkansas Two years from the incident
California The earlier of two years from the incident or one year from awareness
Colorado Two years from the incident and no more than three years unless purposely hidden or foreign object.
Connecticut Two years from incident, no later than three years if action was deliberately hidden
Delaware Two years from the incident, no later than three years if awareness was delayed
Florida Two years from the incident or awareness, not to exceed four years from incident
Georgia Two years from the incident or death, not to exceed five years if awareness was delayed
Hawaii Two years from awareness not to exceed six years from the incident
Idaho Two years from the incident
Illinois Two years from awareness not to exceed four years from the incident
Indiana Two years from the incident
Iowa Two years from awareness not to exceed six years from the incident unless involving a foreign object
Kansas Two years from the incident up to four years from awareness
Kentucky One year from the incident or awareness, not to exceed five years from the incident
Louisiana One year from the incident or awareness, not to exceed three years from the incident
Maryland Three years from the incident or awareness
Massachusetts Three years from the incident or awareness, not to exceed seven years from the incident unless
Michigan Two years from the incident or six months from awareness, not to exceed six years from the incident
Minnesota Four years from the incident
Mississippi Two years from the incident or awareness, not to exceed seven years from the incident
Missouri Two  years from the incident
Montana Two years from the incident or awareness, not to exceed five years from the incident
Nebraska Two years from the incident or one year from awareness, not to exceed 10 years from the incident
Nevada Three years from the incident or one year from awareness
New Hampshire Three years from the incident or awareness
New Jersey Two years from the incident
New Mexico Three years from the incident
New York Two and a half years from the incident
North Carolina Two years from the incident or one year from awareness, not to exceed four years from the incident
North Dakota Two years from awareness not to exceed six years from the incident
Ohio One year from the incident or awareness, not to exceed four years from the incident
Oklahoma Two years from awareness
Oregon Two years from the incident or awareness, not to exceed five years from the incident
Pennsylvania Seven years from the incident
Rhode Island Three years from the incident or awareness
South Carolina Three years from the incident or awareness, not to exceed six years from the incident
South Dakota Two years from the incident
Tennessee One year from the incident or awareness, not to exceed three years from the incident
Texas Two years from the incident or awareness, not to exceed 10 years from the incident
Utah Two years from awareness, not to exceed four years from the incident
Vermont Three years from the incident or two years from awareness, not to exceed seven years from the incident
Virginia Two years from the incident or awareness, not to exceed 10 years from the incident
Washington Three years from the incident or one year from awareness
West Virginia Two years from the incident or awareness, not to exceed 10 years from the incident
Wisconsin Three years from the incident or one year from awareness, not to exceed five years from the incident
Wyoming Two years from the incident or awareness
Most states have exceptions for children, foreign object injuries, deliberately hidden mistakes and reproductive damage. The statutes included here are for general medical malpractice in adults only.

Common Malpractice Lawsuit Characteristics

According to one study, a failure or delay in diagnosis is the most commonly cited form of medical malpractice. But there are several other common types of medical malpractice often alleged in lawsuits.

Common Mistakes Claimed in Medical Malpractice Cases
  • Failure to Diagnose
  • Delay in Diagnosis
  • Failure to Order a Diagnostic Test
  • Neglecting to Create a Follow-Up Plan
  • Skipping Patient History or Physical Exam
  • Incorrectly Interpreting a Test Result
  • Medication Errors
  • Surgical Mistakes

As a result of these behaviors, patients harmed by healthcare mistakes often make medical malpractice claims for the following types of damages:

  • Minor Physical Injury
  • Emotional Pain or Suffering
  • Substantial Physical Harm
  • Death
  • Lost Wages
  • Loss of Consortium
  • Medical Bills

Medical Malpractice Lawsuit Examples

Since medical malpractice lawsuits are typically filed by individuals against individuals, they don’t make as many headlines as corporate lawsuits like those involving baby powder or Roundup weed killer. Even so, we’ve gathered a few relevant examples from our covered lawsuits to make it easier to understand medical malpractice suits in the real world.

$21.6 Million – Lazard Suit

Marlande Lazard went to the doctor after finding a lump in her breast and received a diagnosis of mastitis. But Ms. Lazard knew something wasn’t right when the lump persisted. A year later she was diagnosed with inflammatory breast cancer, after countless doctors had repeatedly misdiagnosed her condition.

Marlande filed a lawsuit claiming a radiologist carried the responsibility for her delayed diagnosis, and a judge ruled in her favor, awarding $21.6 million in damages.

Have you or a loved one experienced a delayed or missed cancer diagnosis? Talk to a personal injury lawyer who can help

$1.85 Million – Stennis Suit

When Myra Stennis’s son was born, Dr. Chris Rekkas manually forced the infant’s shoulder out of the birth canal. Myra soon noticed that her son’s arm seemed limp, and one of his eyes drooped.

After learning that Dr. Rekkas’ actions negligently caused her son’s Klumpke’s palsy, Stennis sued for medical malpractice in the delivery of her son. She was awarded $1.85 million in compensatory damages.

Medical Malpractice Terminology

Negligence

In tort law, conduct falling short of what would be expected of a reasonable person; in reference to medical malpractice, deficient professional behavior as compared to that of a typical physician under similar circumstances