What is considered medical malpractice?

However, most of the time, medical malpractice is not so obvious.  Medical negligence can be caused by any type of medical professional such as a doctor, nurse, dentist, chiropractor, pharmacist, psychologist and ophthalmologist.  Malpractice can also be the result of a facility’s negligence, such as a hospital, doctor office, pharmacy, or surgical center. The mere fact that you are experiencing a complication or injury post treatment does not in and of itself point to malpractice. Medical malpractice is defined as the failure to adhere to a minimum accepted standard of care within the medical community, and causes some sort of damage or injury to the patient.  However, this definition may leave you with more questions than answers.  Below is a simple checklist to determine whether you might have a claim for medical malpractice:
#1: Patient-Doctor Relationship: this element might seem like common sense, but there must be a patient-doctor relationship in order to file a lawsuit for medical malpractice.  While this relationship is commonly easy to ascertain, questions may arise when you have turned to advice of a non-treating physician.
<#2: The Doctor was Negligent: this can be the hardest part of a medical malpractice claim because often times a doctor may not be negligent, even if he or she did not conform to the best possible practice of care.  A doctor is negligent if they fall below the standard of care.  This standard of care is based on how a similarly qualified doctor would have performed under the same circumstances.  Therefore, this standard of care does not mean that the doctor is required to do the best job possible, but rather to act in a manner that is “reasonably skillful and careful.”

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Proving the requisite standard of care often requires the use of expert witness and testimony, as there could be more than one generally accepted standard of care.  Common examples of negligence include:

• Misdiagnosis or a failure to diagnose
• Failure or a delay in treatment
• Medication errors
• Nurses failing to properly follow doctor’s instructions
• Failure to report a change in patient’s condition
• Improper monitoring of the patient, either during or after a surgery
• Surgical errors
• Failure to take a patient’s medical history into account
• Patient is discharged before they should be medically cleared to leave

#3: The negligence caused some sort of injury:  Just because a doctor fell below a standard of care does not automatically give rise to a medical malpractice claim.  Rather, the doctor’s malpractice must be a direct cause of an injury.  In addition, your attorney must demonstrate that the injury would not have occurred if the doctor was not negligent. This can become an issue where a patient had a preexisting injury, and where the malpractice caused an exacerbation of that injury.  Doctor’s will also claim that an injury would have occurred even in the absence of malpractice.  Here, it must be shown that “it is more likely than not” that the doctor’s failure to adhere to the minimum standard of care caused the injury.

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#4: The injury led to some type of damages: The patient must have suffered some type of harm in order to have a viable medical malpractice claim.  This harm can come in many different forms, such as:

• Physical pain and suffering
• Mental distress
• Disability
• Past and future medical bills
• Lost income or loss of earning potential

#5: Time has not run out: victims of medical malpractice do not have an indefinite amount of time to file a claim.  Every state requires that a medical malpractice lawsuit be filed within a specific time frame.  This is known as the statute of limitation.  In California, a medical malpractice claim must be filed within 3 years of the date of the injury OR 1 year from the date the patient knew or reasonably should have discovered about the injury, whichever comes first. Each state has their own statute of limitations for medical malpractice claims.