By Amy Loftsgordon , Attorney University of Denver Sturm College of Law
Updated by David Goguen , J.D. University of San Francisco School of Law
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(A preliminary word of caution: Just because a doctor made a mistake or you're unhappy with a course of treatment or its outcome, that doesn't mean malpractice occurred. You need to be able to show that the health care provider's failure to meet the medical standard of care was the cause of your measurable harm. Learn more about proving medical malpractice.)
Misdiagnosis and delayed diagnosis account for a large percentage of medical malpractice claims. When a doctor misdiagnoses a condition—or fails to diagnose a serious disease for an unreasonable amount of time—the patient might miss treatment opportunities that could have prevent significant harm, even death.
The key in proving a medical malpractice claim based on misdiagnosis or delayed diagnosis is to compare what the treating doctor did (or didn't do) to how other competent doctors within the same specialty would have handled the case. The legal term for this is the medical standard of care: If a reasonably skillful and competent doctor under the same circumstances would not have made the diagnostic error, then the treating doctor might be liable for malpractice.
Misdiagnosis and failure to diagnose (which we just discussed) can be seen as an offshoot of "negligent failure to treat," and these forms of medical malpractice are closely related in terms of what an injured patient will need to prove.
As with failure to diagnose a condition, if a doctor or other health care professional fails to treat a patient's illness, injury, or other health issue, that failure could rise to the level of malpractice if:
Failure to treat can occur in a number of settings and scenarios, including when a health care provider or facility:
Remember that the failure to provide treatment, on its own, isn't enough to formulate a valid medical malpractice case. It must result in a worsening of the patient's condition, or some other kind of measurable harm.
Medication errors harm thousands of people in the United States every year. Medication mistakes can occur at any point on the timeline from initial prescription to administration of the drug. For example, if a doctor prescribes the wrong medication, or a medication meant to treat a misdiagnosed condition, the patient might suffer harm. In a hospital setting, the right drug might be given to the wrong patient.
But by far, the most common medication errors involve dosage—the patient gets too much or too little of a drug. Dosage mistakes can happen when:
A physician or obstetrician's negligence can occur during childbirth or before. If negligent medical treatment occurs during pregnancy—including failure to identify congenital disabilities or an ectopic pregnancy—it could harm the fetus or the mother (or both). A doctor's negligence during childbirth, such as failing to respond to signs of fetal distress or incompetent use of forceps or a vacuum extractor, could also cause injury to the baby and harm the mother.
Medical malpractice can cause a number of fetal injuries, including brain injuries (such as cerebral palsy and seizure disorders), fractured bones, and Erb's and Klumpke's palsy (damage to nerves that control the arms and hands). But keep in mind something other than medical malpractice could also cause these injuries.
Many medical malpractice claims arise from mistakes in the operating room. A surgeon might be negligent during the operation itself, by puncturing internal organs, operating on the wrong body part, or leaving surgical instruments in the body. Or the nursing staff might be negligent in administering post-operative care, which could result in complications like a dangerous infection.
Surgical mistakes are one form of "botched treatment," which is a fairly inclusive term that typically refers to a health care professional's mistake in performing any kind of procedure on a patient.
Remember, any time a health care professional's actions and decision-making falls below the medical standard of care, and the patient is harmed, there could be a case for medical malpractice. That includes the level of skill and care that a surgeon or other medical professional acts with when performing any kind of medical procedure.
Anesthesia errors are often more dangerous than surgical mistakes. Even a small error by an anesthesiologist can result in permanent injury, brain damage, or even death. An anesthesiologist might commit medical malpractice even before anesthesia is administered by:
Anesthesia errors that could happen during surgery include:
Any health care professional can make a mistake in treating a patient, and as we've discussed here, if that error came through the provision of sub-standard medical care, there could be a case for malpractice. This kind of lawsuit could be brought against:
If you're injured when getting medical treatment in a hospital, you might be able to bring a legal claim against the facility for negligence or medical malpractice. The hospital could be held responsible for incompetent care that employees like nurses and medical technicians provide and, in some cases they might be on the legal hook for a doctor's medical negligence. But a key consideration will be whether the doctor was an independent contractor or employee.
If you think your doctor or another health care professional committed an unacceptable medical error while treating you, there are a number of steps you can take to protect yourself and any legal claim you might pursue:
Another important consideration: Even if it's clear that your doctor or some other health care professional made a mistake, unless that error caused you significant harm—it made your existing health issue worse, or created a new health problem—you need to make sure that the time and stress of a medical malpractice lawsuit is going to be worth it.
One thing's for certain: If you're convinced that a health care professional made a while treating you, and that you suffered significant harm as a result, it's never a good idea to try to handle a medical malpractice lawsuit on your own.
Going to court against a health care professional (and their insurance company) and proving your case requires experience and expertise, and the assistance of a team of qualified investigators, consultants, and expert witnesses is often part of that effort. On top of that, complex legal and procedural rules apply to medical malpractice cases, and those rules can vary considerably from state to state.
Getting the best result for your case starts with discussing your situation with a qualified legal professional, who will know how to put your best case together, and will fight for a fair result. Learn more about getting help from a medical malpractice lawyer.