Examples of Medical Malpractice
By: Cohen, Placitella & Roth @ Sep 05, 2022
Dr. Alan Goldberg and Harry M. Roth, Esq.
Medical malpractice is a legal term of art describing injuries occurring when a health care professional, such as a primary care physician or specialized surgeon, breaches the established standard of care that applies to the doctor’s treatment of his or her patient.
Examples of medical malpractice range in severity and anyone can be injured as result. The standard of care can be breached across all stages of diagnosis and treatment.
According to the Department of Health and Human Services, more than 129,000 adverse action reports relating to malpractice claims resulted in over 30,000 reported payments between 2019 and 2021 alone.
The Definitions of Medical Malpractice and Medical Negligence
Although the terms are often used interchangeably, there is a difference between medical malpractice claims and medical negligence.
Negligence occurs when a medical provider fails to meet the appropriate standard of care. However, unless the medical negligence resulted in a physical injury or other harm to the patient, that negligence is insufficient to warrant a lawsuit.
A medical malpractice claim, on the other hand, is justified when a health care provider’s negligence directly caused harm or increased the risk of the patient’s harm occurring. When negligence results in provable injury or harm and a patient take the issue to court, it’s a malpractice claim.
Damages Caused By Medical Malpractice
The damages that can result from medical malpractice vary depending on the type of care, the extent of the personal injury, and more. They typically fall into one of three categories:
- Physical: Physical consequences include any injury resulting from the negligent action. Sometimes these are severe enough to drastically alter or end a patient’s life. Other injuries have a silent but lasting impact on their quality of life.
- Economic: These damages include the cost of treatment and rehabilitation, loss of income, and ongoing expenses. Depending on the nature of the injuries, a patient could face a lifetime of these economic losses. An experienced medical malpractice lawyer knows how to evaluate those losses and provide the evidence that will focus on this lifetime of need.
- Psychological: Psychological side effects of malpractice behavior range from emotional suffering, posttraumatic stress, and inconvenience to distrust of medical professionals, ultimately leading to patients seeking less care.
Patients might be entitled to further compensation, pending a thorough investigation into the damage and all connected afflictions. Though uncommon, if the malpractice is found to be malicious or willful, patients may be eligible for both punitive and compensatory damages.
Liable Parties in a Medical Malpractice Case
The negligent medical providers’ employer can also be found liable if malpractice occurs during the course and scope of employment. For example, patients can often sue both a negligent health care provider (for instance a doctor or nurse) and the provider’s employer (a hospital, for example) under a legal theory called vicarious liability. Under a theory of vicarious liability, a hospital (a principal) can be held liable for harm caused by its agents and employees.
You can also sue hospitals and facilities as an entity instead of suing a specific provider.
A claim of medical malpractice can be made against any health care provider based upon the evidence, including nurses, physical therapists, pharmacists, and entire hospitals.
Medscape found that surgeons and OBGYNs and other women’s health specialists were the medical specialists with the highest malpractice rates in terms of legal action taken in 2017. Specialists are more likely to be sued for malpractice than primary care physicians.
Common Types of Activities That Fall Under Medical Malpractice
Medical malpractice cases occur more frequently than most realize. According to research by Johns Hopkins Medicine in 2016, medical errors should rank as the United States’ third leading cause of death.
The following are some of the most common malpractice claims:
- Birth Injury: Failure to meet the standard of care prior to or during delivery can cause devastating injuries. Some types of birth injury malpractice claims include spinal cord injury, life-threatening brain hemorrhaging, injuries to bones and nerves around a baby’s shoulder (brachial plexus), and facial paralysis.
- Surgical Injury: Surgical errors can worsen existing conditions or lead to loss of life. The American Medical Association says one in three clinicians are sued during their career, with surgical specialists the most likely to face legal action. The Journal of Neurosurgery notes that 20 percent of all US neurosurgeons will face some type of medical malpractice claim, especially after performing spinal surgeries.
- Anesthesia errors and postoperative negligence are two errors with devastating consequences for surgical patients.
- Misdiagnosis and Delayed Diagnosis: Misdiagnosis or delayed diagnosis can mean the difference between receiving life-saving care or suffering symptoms without a known cause. In some cases, patients might undergo treatment for illnesses they don’t have, creating more problems and accruing significant costs. When diagnosis issues result in provable harm, a medical malpractice attorney can help gather the necessary information and evidence to prove the patient’s claim.
- Institutional Malpractice: Institutional malpractice is harm resulting from negligence in settings like hospitals, nursing homes, and assisted living facilities. Medication errors are a common example. In many institutional malpractice claims, negligence stems from a facility-wide error, like poor processes. This is known as a systemic injury. Because systemic injury falls on an entity instead of a single provider, legal action is complex and requires help from a personal injury lawyer with medical malpractice law experience.
- Medical Device Errors: Technologies such as robotically assisted surgical devices have transformed health care, but reliance on medical devices leaves patients vulnerable to errors. If a device independently malfunctions or doesn’t perform as advertised, is the manufacturer or health care professional at fault? The best lawyers can help patients dealing with medical device error understand their malpractice case’s complexities and get the compensation that allows them to recover.
Proving Medical Malpractice Claims
Medical malpractice statistics show claims dating back as far as the 1800s, but the volume of claims hit a stride as technology permitted more surgeries and diagnosis. Medical malpractice claims have shifted in recent decades to include evolving disclosure rules in the era of electronic health records, expanding premises liability and other factors accompanying modern health care.
The National Conference of State Legislatures compiled initiatives to address common issues arising from medical malpractice, including how to approach a medical malpractice claim without accruing unnecessary expenses, deter future medical errors, and ensure fair compensation in malpractice cases.
As part of this ongoing focus on medical malpractice issues, many organizations have implemented communication and resolution programs that establish open communication between the patient and medical professional.
Today’s medical malpractice landscape deals with more gray areas than decades earlier, especially surrounding digital medical records and equipment. Negligent omission cases are particularly complex and shouldn’t be attempted without a medical malpractice lawyer.
Determining Whether You’re a Victim of Medical Malpractice
You need sufficient evidence to determine that you’re a victim of medical malpractice. Being unhappy with your doctor or with surgical results isn’t enough to prove negligence.
If you feel your outcome doesn’t match what you consented to—or you suffered unexpected injury or effects from a procedure or treatment—you may have a medical malpractice case.
You can prove an activity constitutes medical malpractice if it meets these conditions:
- The health care provider owed you a specific duty of care.
- The provider breached that duty.
- The breach resulted in injury or harm you wouldn’t have otherwise sustained.
- You sustained damages because of the injury related to the breach of care.
Why Professional Assistance Is Essential
If you pursue a medical malpractice lawsuit to receive compensation for damages or ongoing treatment, a lawyer with medical malpractice law experience is critical to help navigate the investigation and review process.
An experienced medical malpractice attorney will help determine whether your claim is supported by evidence and will often find qualified experts to help prove your claim.
A lawyer can also help determine whether the lawsuit is worth the cost and time compared to the scope of your injury through a cost-benefit analysis.
Don’t wait to contact a medical malpractice lawyer, or you could miss the statute of limitations or lose evidence pertinent to your case.
Example Cases of Medical Malpractice
One of the most famous examples of medical malpractice in the United States occurred in 1985. A Miami photographer undergoing single eye removal was left brain dead after being injected with an unlabeled vial of a solution similar to formaldehyde. In 1995 a man at University Community Hospital underwent surgery to remove his diseased right leg only to find the surgeon had removed the wrong leg. At the same facility, a patient died after a technician mistakenly removed his breathing tube thinking he was someone else. More recent examples of medical malpractice include a woman awarded $9.5 million after a surgeon left a laparotomy sponge in her abdomen. It stayed there for years, ultimately resulting in misdiagnosis and contributing to limb loss. In 2018, a neurosurgeon performed the wrong type of brain surgery on a tumor patient. The patient died a wrongful death from traumatic brain injury and negligence.
Patients can learn from these example cases of medical malpractice. Always keep thorough notes of symptoms, appointments, treatments, documentation, and conversations with providers. Bring a loved one to appointments and procedures to witness, verify, and help understand information.
At Cohen, Placitella & Roth, we’ve spent more than four decades helping people get the settlements they deserve, with cases spanning various examples of medical malpractice and negligence. Call us at 215-567-3500 or contact us online to learn more.