Malpractice 101 - Everything You Need To Know About Medical Malpractice
Your Guide To Medical Malpractice and What To Do If It Happens To You
- by Adidem
- Aug. 4, 2019
What is medical malpractice?
The meaning of medical malpractice is essentially a doctor mistake which injures someone. Medical malpractice is not limited to doctors, as medical malpractice can be a mistake made by a doctor, a physiotherapist, a psychologist, a psychiatrist, a chiropractor, a nurse, a pharmacist, a lab technician or other medical professional or health care worker. Medical malpractice is defined as your medical professionals actions or omissions falling below a standard of care. The medical practitioner first needs to owe you a duty of care (meaning the person is responsible to provide proper care and attention to you - and the medical professional responsible for your visit would owe you a duty of care).
When it comes to medical malpractice, falling below a standard of care means the action or inaction of your medical professional is different than what another reasonably prudent medical practitioner acting in similar circumstances would have done. Said another way, the question that needs to be asked is would most doctors make the same or similar mistake under the circumstances? If the answer to that question is no, your doctor may be responsible for medical malpractice and you may have a claim; and consistent with the above, your medical professional failing to comply with applicable laws (laws or regulations in your State) policies or procedures of the hospital or medical clinic or of the regulatory body that governs the medical professional (i.e. State medical boards).
Before you have a claim for medical malpractice and even if your doctor fell below the standard of care, you typically need to have suffered injuries or some other loss before you have a legal claim. If you can satisfy the above, you don't have the elements to establish medical malpractice.
How common is medical malpractice?
Unfortunately fairly common - and here are some medical malpractice facts.
Medicine remains a complicated and often high stress field, and mistake can happen. Medical errors are commonly said to be the third leading cause of death in the United States behind heart disease and cancer, and which cause approximately 250,000 deaths each year. This commonly cited statistic has been questioned and others estimate that there are actually approximately 108,000 medical malpractice wrongful deaths per year (either caused by medical malpractice or contributed to by medical malpractice). Medical malpractice is not limited to doctors, and as an example, approximately 2.6% of physiatrist face a malpractice claim annually and 0.2% of those claims results in a settlement. Regardless, there are approximately one to two times the amount of deaths every year resulting from medical mistakes as car accidents. These stats do not include injuries resulting from medical malpractice which do not result in death, granted in 2012 there were approximately $3 billion in malpractice settlements and that amounted to one settlement every 43 minutes. Using these figures, there would be approximately 12,200 malpractice settlements each year.
Other studies have showed that medical malpractice claims have significantly dropped since 2001, noting that there were approximately 8,500 medical malpractice suits (medical malpractice cases or claims) in 2016 and a 50% drop since 2001. This trend is positive for the medical industry and to you as a user of the health care system as medical malpractice court cases continue to drop. With that said, the value of significant claims ($500,000) has remained relatively consistent over the last few years.
Capson a physician insurance company, has provided great data and stats with respect to the frequency of medical malpractice claims against doctors, which includes that:
- an estimated 19.1% of physicians face a claim annually and of those claims 3% result in a payment to a plaintiff;
- for general surgery, an estimated 15.3% of physicians face a claim annually and of those claims 4.2% results in a settlement to a plaintiff; and
- for internal medicine, an estimated 7.8% of physicians face a claim annually and of those claims 2.4% results in a settlement to a plaintiff.
What does this all mean? It is estimated that approximately 1% of all hospital visits result in medical malpractice, however, only 2.9% of people who are subject to a medical error commence a lawsuit against the health care practitioner. So if you are a user of our medical system, there is a 1/100 chance that your doctor, nurse or other health care provider may make a mistake when providing services.
What do you need to prove to establish medical malpractice?
Proving, and determining if you have grounds for, medical malpractice can be challenging. First, you are often bringing a claim that a health care practitioner made your injury or ailment worse. This can be challenging as you are already sick or injured. Second, the person you would bring a claim against (the medical provider) has the best information with respect to your claim, however, they will also be the ones defending themselves and are unlikely to freely admit to their mistakes. Even worse, a doctor is technically not allowed to admit a mistake as that doctor will likely lose the benefit of his or her insurance if they admit liability. So, talking to your doctor about whether he or she made a mistake is not going to be helpful.
Third, you will need to obtain your medical records and have another doctor confirm that the doctor you allege made a mistake did in fact make a mistake. The difficulty comes from the fact that some medical treatments are uncertain, there can be multiple treatments or the correct treatment can be debated. Proving whether your doctor's actions constitute medical malpractice and whether you have a claim can be challenging unless it is clear that your doctor made a clear mistake that injured you.
After you prove your doctor made a mistake, you will then need to prove you suffered injuries or other damages as a result of your doctor's error (i.e. suffered additional injuries, required further treatment, healing took longer, incurred additional medical costs, had to take time off work or your personal life was impacted). You typically will not have a claim unless you suffer some type of loss or injuries, even if your doctor made a mistake.
What is considered medical malpractice (some examples)?
There are innumerable ways that the actions or omissions of a health care practitioner could result in medical malpractice. If you see a doctor or other medical service provider and believe they may have made a mistake, and as noted above, it is important for you to visit another medical professional to determine if a mistake was made or otherwise contact a personal injury attorney. With that said, here are some of the more common types of events of that could be considered medical malpractice:
- Failure to diagnose or misdiagnosis;
- Misreading or ignoring laboratory results;
- Unnecessary surgery;
- Surgical errors or wrong site surgery (or post surgical errors);
- Improper medication or dosage;
- Poor follow-up or aftercare;
- Premature discharge;
- Disregarding or not taking appropriate patient history;
- Failure to order proper testing;
- Failure to recognize symptom;
- Failure to warn a patient of known risks;
- Anesthesia Error;
- Mistake During Childbirth;
- Undiagnosed Heart Disease;
- Misdiagnosis of deep vein thrombosis;
- Informed consent or medical battery;
- malpractice insurance.
Do doctors have medical malpractice insurance?
Yes. Typically all medical professional carry some type of insurance. Doctors and other health care providers pay somewhere between $30,000 and $200,000 per year for insurance premiums to protect them from medical malpractice claims. It's important to note that the cost of this insurance is built into the rates you pay to access health care. So if you are injured by an action of a doctor or other medical professional, you have already, indirectly, paid for the benefit of having insurance that can pay you for your injuries that you suffered as a result of the errors of your doctors.
Can you sue a Doctor?
Yes, if you are the victim of a medical error. If you have a complaint that you may be the victim of medical malpractice, you would technically sue the doctor (or other medical professional) and the hospital or the clinic that was providing services to you. While that can feel very personal and awkward (and often causes people to not bring a personal injury claim against their doctor), it is important to note that the insurance company steps in to defend that claim. In essence, if you bring a lawsuit against your doctor or health care provider, you are really bringing a claim against that doctor's insurance company. You shouldn't feel bad about accessing the benefits of insurance that you have indirectly paid for. It's very similar to calling your insurance company if you have water damage in your house. If insurance money is available, you should get the benefit of it. It's equally important to note that if you bring a claim against your doctor and you are unsuccessful, you may be responsible to pay court fees or other costs associated with your lawsuit. As a result, its very important for you to ensure that you have a legitimate claim before commencing any type of action for medical malpractice.
Can you bring a malpractice claim against a Nurse?
Yes, if a nurse is overseeing your visit in the hospital or clinic, that nurse likely owes you a duty of care and is responsible if a mistake was made. Settlements from nurse malpractice currently average $240,000, and granted settlements of less than $100,000 accounted for 39% of all settlements. Approximately 18% of cases have settlements exceeding $500,000. Again, if you were to bring a claim against a nurse, typically the insurance company that insurs the nurse will defend the claim and the nurse will have financial protection for your claim and you may be entitled to the benefits of that insurance.
As noted above, medical malpractice can occur by any medical professional, including physiotherapists. In 2015, settlements for physiotherapist negligence was approximately $42 million in the United States.
How do you know if you have a case against a Doctor or other medical professional?
You will need evidence (proof) that a doctor or medical professional made an error or mistake that injured or further injured you.
Your first instinct should guide you with respect to whether the actions or failure to act by your doctor may have harmed you or may have made your injuries worse and whether you should further investigate. If you think your injury was made worse by your doctor, or you were injured by your doctor, you then need to seek a second opinion from a doctor who is in the same specialty as the doctor that you believe injured you. That second opinion will be important to determine if the first doctor may have made a mistake and was guilty of medical malpractice.
It is also important to note that doctors are not in the business of volunteering information that will be critical of their fellow doctors. So if you think you may have a medical malpractice claim, it is also very important to speak with a personal injury lawyer to assess whether you may have a claim and whether they can help you obtain a second opinion to determine whether you have a claim.
Adidem has also provided software to help you do this. You can see how Adidem can help you below.
When do I need to bring my case against my Doctor?
Be mindful that if you do not bring a claim within the period prescribed in the statute of limitations in your applicable State, you will likely lose your right to bring a claim. The statue of limitations can vary from anytime between 1 year and 6 years after a claim arises depending on your State (The statute of limitations is different in every state).
As a result, its very important to quickly decide whether you intend to bring a medical malpractice lawsuit. If you run out of time, you will likely forfeit your right to recover any amounts for medical malpractice. A lawyer can provide you with further particulars with respect to when the statute of limitations applies.
What is the average settlement in medical malpractice cases?
If you are the victim of medical malpractice, the damages you are entitled to can significantly vary depending on the nature of your injuries and how those injuries have impacted your life. It is also important to note that some States limit or cap the amount you can claim from doctors or medical professionals in certain instances. Thus, legal advice is required in order to assess the potential value of your claim.
Medical malpractice damages will depend on the type of injuries you have suffered (i.e. including how long it takes you to recover from those injuries and how much pain and suffering you experienced from those injuries), if those injuries impacted your personal life (recreational activities, sex life or otherwise), if you had to or will have to incur additional medical costs and if the injuries impacted your ability to work (or may impact your employment in the future).
According to Capson (a great resource for physician related claims), the mean settlement in medical malpractice cases is $274,887, and the median is $111,749. Capson also noted that the median settlement for medical malpractice against:
OBGYN doctors is $150,000, and the average is $375,000;
psychiatrists is $60,000, and the average is $185,000;
family doctors is $130,000, and the average is $255,000;
orthopedic surgeons is $110,000, and the is $225,000;
pediatricians is $160,000, and the average is $520,923;
radiologists is $97,600, and the average is $233,000;
neurosurgeons is $230,400, and the average is $344,811;
cardiovascular surgeons is $159,000, and the average is $308,423;
general surgeons is $178,000, and the average is $290,524; and
internal medicine doctors is $292,000, and the average is $311,524.
The above settlement figures assume that there are grounds for a claim against the health care practitioner. Obviously, just because you have a claim against a medical professional doesn't mean that you will be entitled to the amounts above. It is important to speak with a personal injury lawyer to determine what amounts you may be entitled to.
As noted above, you can try Adidem who will contact personal injury lawyers for you and try to obtain an estimate of what your claim may be worth and whether you may be entitled to bring a medical malpractice lawsuit.
How do you find the right personal injury lawyers if you think you may be the victim of medical malpractice?
To find the best personal injury lawyer, you can read Adidem's blog here (how you can use Adidem to hire a personal injury attorney). If you've been injured by a medical professional, its important to retain the services of a lawyer to get the compensation you are entitled to. As an example, say you were injured by a doctor and you called the hospital on your own to say you were injured and that you have a claim. Well, it would be extremely unlikely that the hospital will be very helpful to you. Even worse, the hospital may offer you an extremely low amount in an attempt to make your claim go away while mitigating the exposure to the hospital. Hiring a lawyer will help prevent this. After you hire a lawyer, not only will the hospital now know the lawyer intends to maximize the value of your claim, the hospital will also know that it will need to hire a lawyer to defend itself, at a potentially significant cost to the hospital. This incentivize the hospital to settle your claim as quickly as possible.
How Adidem can help you find the best personal injury lawyer for your claim?
Adidem provides software for your convenience (and for free) that allows you to obtain proposals from multiple personal injury lawyers. Adidem brings the legal market to you, rather than you needing to contact lawyers to determine if you have a claim. In addition, after you answer our injury questionnaire, Adidem will get the following information for you from lawyers:
- whether you may have a claim (as a preliminary estimate only),
- what the initial estimated amount of your claim may be (the potential settlement amount),
- what it will cost to hire the personal injury lawyer,
- what you may recover after paying your lawyer, and
- how long it may take to resolve your personal injury claim.
You simply review the proposals and determine which lawyer you may want to hire (and decide if you want to go forward with your claim). Its that easy.
*Please note that Adidem is not a law firm and Adidem does not provide legal advice. You will need to independently verify the information herein with a lawyer before relying on it. If you decide to hire a lawyer that provided you with a proposal, your agreement for legal services will be directly between you and the law firm and Adidem will not be a party to that agreement.