Medical malpractice refers to professional negligence by a health care professional or provider in which treatment provided was substandard, and caused harm, injury or death to a patient. In the majority of cases, the medical malpractice or negligence involved a medical error, possibly in diagnosis, medication dosage, health management, treatment or aftercare. The error may have been because nothing was done (an act of omission), or a negligent act.
Medical malpractice law provides a way for patients to recover compensation from any harms resulting from sub-standard treatment. The standards and regulations for medical malpractice differ slightly from country-to-country; even within some countries, jurisdictions may have varying medical malpractice laws.
A hospital, doctor or other health care professional is not liable for all the harms a patient might suffer. They are only legally responsible for harm or injuries that resulted from their deviating from the quality of care that a competent doctor would normally provide in similar situations, and which resulted in harm or injury for the patient.
How common is medical malpractice?
Diagnosis errors cause up to 160,000 deaths annually in the USA – making diagnostic errors are one of the most dangerous and expensive mistakes made by American doctors, estimated to cause between 80,000 and 160,000 deaths every year, Johns Hopkins researchers reported in BMJ Quality and Safety (April 2013 issue).
The researchers examined data from over 350,000 malpractice claims in the United States over the last 25 years. They reported that the majority of claims were related to diagnostic errors, and that those errors frequently caused severe patient harm and led to the biggest total payouts.
$38.8 billion were paid out in diagnosis-related payments between 1986 and 2010.
Team leader, David E. Newman-Toker, M.D., Ph.D., said “This is more evidence that diagnostic errors could easily be the biggest patient safety and medical malpractice problem in the United States. There’s a lot more harm associated with diagnostic errors than we imagined.” According to a HealthGrades Patient Safety In Hospitals Study, about 195,000 patients in the United States die each year from preventable in-hospital medical errors. The authors added that out of 37 million Medicare hospitalizations from 2000 to 2002, there were 1.14 million patient-safety incidents.
There are between 15,000 and 19,000 malpractice suits against US doctors annually.
Researchers from the University of California in San Francisco reported in JAMA (Journal of the American Medical Association) that sexual misconduct and prescribing to patients without any established clinical relationship are among the most common violations of professionalism by physicians in the United States.
A 2009 study carried out by researchers from Massachusetts General Hospital (MGH) Department of Medicine found that the majority of American doctors will face a malpractice lawsuit at some time during their professional careers. However, the risk of having to pay out any money to a plaintiff is fairly low.
One in every three hospitalized patients in the USA encounters a hospital error, says a report published in Health Affairs. The University of Utah researchers revealed that errors made in hospitals were ten times more common than experts had thought. Examples of hospital errors included:
Misdiagnosis or Delayed Diagnosis
Misdiagnosis and delayed diagnosis account for a large percentage of medical malpractice complaints. When a doctor misdiagnoses a condition (or fails to diagnose a serious disease for some time), the patient might miss treatment opportunities that could have prevented serious harm or 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 speciality would have handled the case. If a reasonably skillful and competent doctor under the same circumstances would not have made the diagnostic error, then the treating doctor may be liable for malpractice.
A number of fetal injuries can be caused by medical malpractice, 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). However, keep in mind that these injuries are more often caused by something other than medical malpractice.
A physician or obstetrician’s negligence can happen during childbirth or long before.
Negligent prenatal care. If negligent medical treatment is provided during the pregnancy, it could harm the fetus or the mother (or both). Some examples of negligent prenatal care include the physician or obstetrician’s:
- failure to diagnose a medical condition of the mother, such as preeclampsia, Rh incompatibility, hypoglycemia, anemia, or gestational diabetes
- failure to identify birth defects
- failure to identify ectopic pregnancies, or
- failure to diagnose a disease that could be contagious to the mother’s fetus (such as genital herpes or neonatal lupus).
Negligence during childbirth. A doctor’s negligence during childbirth could cause injury to the baby and harm to the mother. Common medical errors during childbirth include the physician or obstetrician’s:
- failure to anticipate birth complications due to the baby’s large size or because the umbilical cord got tangled
- failure to respond to signs of fetal distress
- failure to order a cesarean section when one was appropriate, or
- incompetent use of forceps or a vacuum extractor.
According to a 2006 study, medication errors harm approximately 1.5 million people in the United States every year. Medication errors can occur many ways — from the initial prescription to the administration of the drug. For example, a patient might be harmed if the doctor prescribes the wrong medication. Or the patient might be harmed by medication that the doctor prescribes to treat a misdiagnosed condition. In a hospital setting, the right drug might be given to the wrong patient.
However, by far the most common medication errors involve dosage — the patient gets too much or too little of a drug. This can happen several ways:
- The doctor writes an incorrect dosage on the prescription.
- The prescription is correct, but the nurse administers the incorrect amount.
- Equipment that administers the drug malfunctions, causing a large dose of medication to be administered over a short period of time. For example, this can happen when a defibrillator has a dead battery or an intravenous pump has a dislodged valve.
Anesthesia mistakes are usually more dangerous than surgery mistakes. Even a small error by the anesthesiologist can result in permanent injury, brain damage, or even death. An anesthesiologist can commit medical malpractice even before anesthesia is administered by:
- failing to investigate the patient’s medical history for possible complications, or
- failing to inform the patient of the risks involved if preoperative instructions aren’t followed (like not eating for a certain period of time prior to surgery).
Anesthesia errors that can occur during surgery include:
- giving too much anesthesia to the patient
- failing to monitor the patient’s vital signs
- improperly intubating patients (putting a tube in the trachea to assist with breathing), or
- using defective equipment.
Some medical malpractice claims arise from mistakes made in the operating room. A surgeon might be negligent during the operation itself (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-op care (which could result in complications like serious infection).
Getting Help with a Medical Malpractice Case
Medical malpractice cases are regulated by complex rules that can vary considerably from state to state, so it’s often essential to get advice or representation from a O. Mitchell Law Group who has experience handling medical malpractice lawsuits.