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Medical Negligence and Malpractice

patient and husband talking to doctorMedical malpractice, or medical negligence, is what happens when a medical provider breaches its duties to a patient who suffers a resulting injury. Its scope goes beyond mere hospital or doctor negligence. Pathologists, radiologists, administrators, nurses, EMT’s, dentists, dental assistants, pharmacists- all are capable of committing medical malpractice . Simply being injured or harmed by some kind of medical device, procedure or medication, does not necessarily rise to the level of malpractice. Other important factors determine whether a patient as been the victim of medical malpractice.

Deviating from the standard of care

Medical malpractice claims are driven by state law. What may be medical malpractice in one state, might not be in another. Generally speaking medical negligence boils down to a deviation from the generally accepted standard of care with injuries or damages occurring as a result.

To establish deviation from standard of care, plaintiff must show:

  • The standard of care must be defined by establishing the customary methods of diagnosis or treatment generally accepted within a particular field of medicine for that geographical location.
  • A factual showing of a departure from that standard.

Medical professionals have a duty to exercise the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the professional in his field. If the health care professional’s actions and decisions fall within this range, even if a mistake occurs and harm is done, he or she will not be found to have acted negligently and may not not be liable for medical malpractice.

Plaintiff must prove proximate cause of injuries claimed

If the generally accepted standard of care for the particular situation is established and it is shown that medical professional breached duties under that standard, the plaintiff needs to clear additional hurdles in order to win the case. The plaintiff must also show, to a reasonable degree of medical probability, that the treating professional’s negligence was the proximate cause of the injury.

Proximate cause is considered the primary cause of an injury.  It is distinguishable from the factual cause which is generally conceded.  Proximate cause answers the question whether or not the resulting harm was the reasonably foreseeable result of a practitioner’s actions or inactions.

For example, could the doctor have known that a misdiagnosis would cause a patient to fail to seek treatment for a condition that proceeded to get worse? If that answer is yes, then the patient’s current condition could be attributed to the doctor’s negligence and ultimately, render the doctor liable in a medical malpractice case against him.

In a medical negligence case, the plaintiff must also demonstrate that the resulting injuries occurred within a reasonable degree of medical probability. In other words, the plaintiff’s medical experts do not need to be 100% certain that the resulting injury is the proximate cause but rather, that the injuries were- more likely than not– the result of action on the part of attending medical personnel.


In order to pursue a medical malpractice case, the plaintiff needs to show that she suffered damages as a result of the negligence committed against her.

Damages available to successful plaintiffs include:

  • Actual damages: out of pocket expenses, medical bills, lost wages
  • General damages:  emotional distress, pain, suffering, loss of enjoyment of life, disfigurement, scarring, future lost wages and medical bill
  • Punitive damages: punishment for grossly negligent or intentional actions which are rarely awarded

Like the standard of care, awards of damages may vary by state law. Caps and other limits on punitive awards are typically dictated by statute and are not determined by a jury. Other states adopt more a liberal approach that allow for larger awards.

Examples of medical negligence

Medical personnel may commit malpractice in countless ways. Some of the more common examples include:

  • Failure to Diagnose/ Misdiagnosis:  Was something not diagnosed or was the wrong diagnosis given? Did the correct diagnosis come so late that the patient suffered injury or death because the condition progressed or complications set in?
  • Improper Treatment:  Was the patient treated too conservatively, with outdated methods? Was the treatment experimental with little or no track record of success? Was the patient treated for the wrong ailment?
  • Failure to warn patient of known risk:  Did the patient give informed consent?
  • Emergency room malpractice:  Was the patient properly evaluated and given the proper priority for treatment? Did emergency treatment do further harm to the plaintiff?
  • Surgical negligence / surgery errors:  Should the surgery have taken place at all? Was the correct surgery performed? Did the surgeon have the required skill and experience? Was anesthesia properly administered by qualified personnel?
  • Hospital negligence:  Was the patient given the wrong medication? Wrong dose of the correct medication? Did insufficient staffing lead to neglecting the patient? Did the hospital have all available/requisite technology available? Did the patient develop an infection while in the hospital?
  • Pharmacy:  Was the correct medication, in the correct dosage, made available? Was the medication used after an expiration date? Were orders for medications properly followed?
  • Dental: Was the wrong procedure used for the condition, or was the correct procedure done negligently? Did infections happen because instruments weren’t sterilized or personnel were not following correct procedures?

Act now to protect your rights

Medical malpractice cases can be complex. What may seem a simple situation from the patient’s perspective is usually rife with several complicated matters of law.  Claims are limited by state imposed statutes of limitations which threaten to terminate legal action before it ever gets a chance to be filed. To help victims of negligence expedite legal action,  the medical malpractice lawyers at Eisbrouch Marsh offer free case evaluations.

Our dedicated team of trial lawyers, medical experts and investigators have been taking negligent medical professionals to court for over 40 years. Call today to see if your experience at the hands of your health-care provider qualifies you to file a medical malpractice lawsuit. No legal fees are assessed unless your case is successful. Call 1-855-60-BIRTH today.

  1. Forbes, 10 Things To Know About Medical Malpractice

  2. Lectric Law Library's Stacks, Preparing the Plaintiff's Medical Expert Witness for Trial,

  3. MNT, What is Medical Malpractice?