What is a medical malpractice lawsuit?

In the U.S., medical malpractice is a subset of “tort” law, which is the body of law that deals with civil wrongs. It encompasses categories including 

• Negligence
• gross negligence
• professional negligence
• recklessness
• acts of intentional harm 

Medical professionals are held to a higher standard than nonprofessionals. They should have a great deal of knowledge regarding various medical conditions and treatment protocols, and therefore are responsible for providing a high standard of care. 

Standard of care is what a “reasonable” medical practitioner would have done under similar circumstances. In other words, medical professionals are responsible for using a certain level of knowledge, training, and experience. If a medical professional gave the wrong treatment or didn’t take action when they should have, it may be a breach of standard of care. These actions can be medical malpractice or medical negligence.

Medical malpractice cases are centered around wrongs committed by medical professionals or medical facilities that cause injuries to their patients. An individual may have a medical malpractice case if they, their child, or their dependent has sustained an injury after practitioners committed one or more of these acts:

• Misdiagnosis or delayed diagnosis
• An inappropriate choice of treatment
• Errors in the execution of treatment
• Medication mistakes
• Failure to follow up with a patient after treatment
• Failure to obtain a patient’s informed consent prior to beginning treatment

In a malpractice case, the person suing is called the plaintiff. The medical professional or organization being sued is called the defendant. In some cases, there may be multiple plaintiffs, and multiple defendants. 

There are four things a plaintiff and their attorney must prove in order to win a case:

1. The defendant was responsible for (or had a duty to provide) the treatment or care of the person injured
   •  In other words, prove the harmed individual wasa patient of the defendant.
2. The defendant behaved negligently because they did not provide the standard of care required. 
   • Medical experts are often called in to testify as to what could have reasonably been expected of the defendant. This information provides context so the jury can determine whether the defendant did not provide appropriate care.
3. The negligence/deviation from standard of care resulted in injury to the plaintiff. 
   • Negligent care or behavior is very concerning even if it doesn’t lead to patient harm, because similar actions could harm future patients. However, if it doesn’t cause harm to the plaintiff, it is typically not grounds for a lawsuit.
4. The injury resulted in measurable damages that merit compensation.
   • Compensation can cover things like past and future medical treatments related to the injury, loss of wages, physical therapy, and other care costs. 

Medical malpractice suits are usually filed in a state trial court. If the case involves federal funding, a military medical facility, or or a Veteran’s Administration facility, the case would be filed in a federal district court. A claim may also be filed in a federal court if the parties involved are from different states or if there was an accused violation of a fundamental constitutional right.

After a suit is filed, both parties gather information from the other. Medical Records: The plaintiff’s attorney will request their client’s medical records from the defendant. 

Interrogatory Forms:Interrogatory forms a set of written questions to clarify facts. Each attorney submits their questions to the opposing party.

Depositions: Depositions are formal meetings in which an individual  –  such as the plaintiff, the defendant, or an expert for either party  –  is questioned under oath. A record of these depositions is taken for potential use in court. Usually, attorneys for both parties and the court reporter  attend the deposition.  In some cases, the plaintiff or defendant can also choose to attend to observe, but does not talk or ask questions. 

Settlement: Sometimes, the defendant and their attorney will agree to settle the case prior to court. A settlement is when the defendant pays the plaintiff a mutually agreed upon amount called a “settlement.”

Trial: If the prosecution and defense cannot agree on a settlement, the case will proceed to trial. Medical malpractice trials are almost always trials by jury. If a case does proceed to trial, and the losing party is unwilling to accept the jury’s verdict, they can appeal to a higher court. In some jurisdictions, they can also appeal the amount of a judgement in the same court.

Contingency Fees

A good medical malpractice prosecution attorney will not collect any money from the plaintiff unless they win a case. The plaintiff can only have a net gain from a lawsuit, not a loss.

This structure of payment is called a contingency fee. Because the plaintiff attorney will not be paid until after a case finishes, anyone can work with an attorney. Everyone should have access to justice if they have been wronged by medical malpractice. 

The plaintiff law firm will cover all costs during the case. These costs can include paying for experts, acquiring records, and various administrative costs. At the end of the case, if it is successful, the plaintiff attorney will receive a percentage of the verdict or settlement.

Malpractice Insurance for Doctors

Most doctors and other medical professionals carry malpractice insurance to protect themselves in case of negligence or unintentional injury to their patients. A specific medical group or hospital system may require employees to have insurance. Some states, but not all, have minimum insurance requirements for medical providers.

Malpractice insurance will cover both attorney costs and any money given to the plaintiff as the result of a settlement or verdict. When the insurance money is exhausted, the medical provider or facility may be responsible for any excess verdict or judgment against them.

Insurance companies will often allow the defendant to decide whether to agree to a settlement, but some plans state that the insurance agency can settle a claim without the consent of the policyholder (defendant).

Medical malpractice law in the U.S. has generally been left up to the state rather than the federal government. Certain aspects of malpractice regulations can vary widely from state to state.

Many states have also adopted recent changes called “tort reform” measures. Some of these changes are in response to the criticism that medical malpractice suits lead to “defensive medicine” –  in other words, medical professionals are so concerned about avoiding malpractice suits that they behave in unproductive or even harmful ways.

Some examples of tort reform measures include:

• Shortening the statute of limitations (the time period in which a plaintiff can pursue legal action)
• Ending joint and several liability (a situation in which one defendant is responsible for paying all of the damages if other defendants involved in the same case lack the resources to pay)
• Permitting damages to be paid in installments rather than as a lump sum
• Putting a cap on damages that can be awarded
• Requiring an affidavit from a medical expert testifying to the merits of the case before a claim can be filed

However, a study comparing states with tort reform to states without it found little evidence that these measures actually stopped doctors from behaving defensively. It remains to be seen whether tort reform measures can actually improve medical care.

Tort reforms may just limit the amount of compensation that a plaintiff can receive, so people with permanent injuries must make due with less money than what is necessary to ensure proper care.

Somewhere between 210,000 and 400,000 Americans die each year due to a medical error (James 2013); it is now the third leading cause of death in the United States (Makary 2016). Many more sustain injuries that leave them with lifelong disabilities. Moreover, a recent national survey revealed that 21% of Americans have personally experienced a medical error, and 31% have been involved in the care of a family member or friend who did. As discussed above, tort reform measures may be effective in limiting the number and success of malpractice lawsuits, but don’t necessarily address the underlying issue of the malpractice epidemic in America.

Many medical and legal professionals agree that all parties involved would benefit by a system involving open communication, learning from mistakes, and conflict resolution without adversarial procedures.

Alternative Dispute Resolution (ADR) models attempt to accomplish just that. Unlike the traditional medical culture in which physicians and other professionals are discouraged from acknowledging their mistakes or discussing what happened with the injured patient/their family, ADR models promote straightforward communication and peaceful resolution.

The Lexington, Kentucky Veterans Affairs (VA) Medical Center was one of the first to introduce such a program. Non-economic benefits to medical professionals included the promotion of ethical, honest behavior, and benefits to patients and their loved ones included a truthful account of what occurred, an apology, and potentially an offer of compensation. The VA also benefited financially – it became the VA hospital with the lowest malpractice payouts. Also, their average length of cases decreased from 2-4 years to 2-4 months.

The first non-VA hospital to adopt such a program was the University of Michigan’s (U of M’s) health care system, which introduced the Michigan Model in 2001. Payments to wronged patients are made on behalf of the institution itself, so they are not reported to the National Practitioner Data Bank (such a report would affect a physician’s reputation). In this way, U of M protects its physicians and encourages them to own up to any mistakes. For more information on the Michigan Model for responding to medical errors, and how it has benefited both patients and medical professionals, click here.

ADR models are spreading and may vastly improve the legal landscape, but they also necessitate a shift in medical culture. Patients may receive smaller  payouts than they would in the traditional adversarial legal system at trial. However, they may also get compensated more efficiently, by reducing the cost of proceeding through lengthy litigation and trial.  In addition, patients in this model may feel that they have more honest interactions with their care providers (Kass and Ross 2016).

Birth injury is a difficult area of malpractice law to pursue due to the complex nature of the medical records. The award-winning birth injury attorneys at ABC Law Centers: Birth Injury Lawyers (Reiter & Walsh, P.C.) have decades of joint experience with birth injury, hypoxic-ischemic encephalopathy (HIE), and cerebral palsy cases.

To find out if you have a case, contact our firm to speak with one of our lawyers. We give personal attention to each child and family we help, and are available 24/7 to speak with you.

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