Medical Malpractice Law


In the field of healthcare law, medical malpractice is broadly defined as the failure of a health care practitioner to provide the standard level of care, as defined by that practitioner’s peers, and where such failure results in injury to a patient or to a patient’s death. Examples of medical malpractice include:

  • failure to follow published or generally-accepted standards of care
  • failure to promptly diagnose and treat
  • failure to properly supervise ancillary health care workers
  • improper treatment
  • misdiagnosis
  • acts of gross negligence
  • attempting to practice while in a physically or intellectually impaired state

On a national scale, the US Center for Disease Control and Prevention estimates that there are 195,000 deaths each year that are attributable to medical mishap. It is further estimated that there are some 15,000 to 20,000 healthcare lawsuits filed each year, thus representing only about 10% of the estimated deaths from some form of malpractice. Although the procedural details will vary among the different jurisdictions, the sequence of events in healthcare lawsuits follows a general pattern.

Following consultation with a healthcare lawyer to confirm that malpractice may be reasonably expected to have occurred, the injured party or his legal representative (the plaintiff) files a healthcare lawsuit via his healthcare lawyer against one or more parties that are alleged to have performed the acts of malpractice (the defendants). In general, healthcare lawsuits (all of which fall under the Law of Torts) allege that:

  • the defendant had a legal duty to treat the plaintiff
  • the defendant, for any number of reasons, did not perform that duty
  • as a direct consequence of that failure, the plaintiff suffered an injury
  • the plaintiff asks that damages be paid by the defendant as compensation for the plaintiff’s injury

In all healthcare lawsuits, the burden of proof rests upon the plaintiff and it is the plaintiff’s responsibility to prove injury at the hands of the defendants. In doing so both sides will file motions for discovery, take affidavits from the parties involved in the lawsuit and, most importantly, obtain the services of expert witnesses who will testify regarding the existing standards of care that would have been expected. At any point in the legal process, the healthcare lawsuit can be withdrawn by the plaintiff or a negotiated settlement that is acceptable to all parties may be arranged. In both cases the suit is dismissed by the court.

Should the lawsuit go to trial, evidence in support of the plaintiff’s argument is presented to the judge/jury and, usually, expert testimony is heard. The defendants will then present counterarguments, including their own expert witnesses, and the body of evidence from both sides is then weighed before a verdict is returned.

Obviously, healthcare lawsuits are quite complicated and very detail oriented. It will thus be to anyone’s advantage to consult with a qualified healthcare lawyer when issues arise under healthcare law. By doing so, the individual may be assured that his or her legal rights will be fully considered and protected by the judicial system.


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