Understanding how to sue for medical malpractice can make an enormous difference in your life or the lives of your loved one. According to one study, about 250,000 people die every year due to medical mistakes. And many hundreds of thousands more are injured by medical malpractice every year.
These errors result in additional medical bills, pain, and even permanent disability. A minor cosmetic dentistry procedure could improve your smile. It could also result in disfiguring or even sepsis, a potentially fatal blood infection.
If you have been, or suspect that you have been, injured due to medical error, or if a loved one died due to medical error, here are some tips on how to sue for medical malpractice.
Know Who You Can Sue
The first step in how to sue for medical malpractice is knowing who you can sue. Medical malpractice applies to a specific set of healthcare providers. This is both good and bad. On the one hand, a medical practice’s malpractice insurance only covers those exposed to malpractice liability. This means that it will probably not cover your injuries if they were caused by a janitor or cafeteria worker at the clinic or hospital.
On the other hand, many states cap the damages you can win in a medical malpractice case. In these states, you might be better off if you do not fall into the category of ‘medical malpractice’ because you might be able to recover greater damages in an ordinary negligence lawsuit.
The people typically covered by medical malpractice claims are those who provide or assist in providing medical services. Generally, this means they exercise the skill and knowledge of a healthcare provider. Some examples of those usually covered by medical malpractice claims are:
- Doctors and dentists
- Nurses and nursing assistants
- Laboratories and laboratory technicians
- Medical technicians
- Pharmacists and pharmacy technicians
- Physical therapists
But not everyone in the healthcare industry can be sued for medical malpractice. Some examples include:
- Chiropractor: In some states, chiropractors are not subject to medical malpractice lawsuits because they are prohibited from practicing medicine. But they are always subject to ordinary negligence lawsuits if you are injured due to improper care.
- Veterinarian: While a vet is providing healthcare to your pet, a vet does not fall under the ordinary definition of a healthcare provider for purposes of medical malpractice. However, this usually benefits pet owners because they would be free from the damages caps on medical malpractice claims if they file a veterinary malpractice claim.
- Pharmaceutical companies and medical device manufacturers: Even though they are integral to healthcare, these companies are not in the business of providing healthcare services. Instead, they supply a product used in healthcare. As a result, a lawsuit against drug companies and medical device manufacturers falls under product liability, not medical malpractice.
Know What You Can Sue For
The next step in how to sue for medical malpractice is to identify an act that falls under malpractice. Not every injury that happens in a clinic or hospital will support a medical malpractice claim. For example, if you slip and fall in a medical clinic’s parking lot or get food poisoning from a hospital cafeteria sandwich, your claim would be an ordinary negligence claim rather than a medical malpractice claim. You could still get compensated for your injury, but your personal injury attorney would not style the lawsuit as a malpractice claim.
Medical malpractice claims generally fall into three categories:
Diagnosis errors include misdiagnosis or non-diagnosis of your medical condition or injury that causes you harm. If no harm was caused, either because the injury healed anyway or because the diagnosis error did not delay treatment, you might not be able to win a medical malpractice case. Instead, you must have suffered some damage or harm as a result of the diagnosis error when you are looking at how to sue for medical malpractice.
Some common examples of diagnosis errors include:
- Misdiagnosis: Your doctor or a lab misdiagnoses your medical condition or injury. For example, suppose a doctor diagnoses the cause of osteoarthritis in your knee as degraded cartilage and prescribes a knee replacement, But later you find out that the knee replacement was unnecessary because the pain in your knee was a sprain. The misdiagnosis could constitute medical malpractice even if the knee replacement was performed flawlessly.
- Non-diagnosis: Your doctor or a lab misses your diagnosis and, as a result, treatment for your injury or illness is delayed. This error is a common complaint against labs that miss tumors on x-rays or MRIs.
- Mixed-up results: Your doctor or a lab mix up your results with someone else’s tests. As a result, you are treated for the wrong condition or illness. Even if the treatment is performed perfectly, the misdiagnosis itself could constitute medical malpractice because you were treated for the wrong condition or illness.
Treatment errors happen when the treatment provided by the doctor fails to meet the standard of care expected under the circumstances. This does not necessarily mean that every mistake in treatment constitutes medical malpractice. But it does mean that unreasonable mistakes could support a malpractice claim.
For example, suppose you are knocked unconscious in a fall and are taken to a hospital. The emergency room doctor prescribes a medication that you are allergic to. Even though you may have had a severe allergic reaction, the doctor might not be liable for medical malpractice. Since you were unconscious, the doctor had to do what was reasonable under the circumstances.
On the other hand, some treatment errors can constitute malpractice when you analyze how to sue for medical malpractice. Some examples include:
- Wrong treatment: If the doctor chooses the wrong treatment for your condition, the choice might constitute medical malpractice. For example, if you have an infection and the doctor prescribes painkillers instead of antibiotics, you might have a claim for malpractice.
- Wrong body part: If the doctor treats the wrong body part, the treatment might constitute medical malpractice even if the treatment is performed flawlessly. A common example of this type of error is a doctor who amputates the wrong leg.
- Flawed treatment: Doctors are not expected to perform perfectly. But they are expected to perform reasonably under the circumstances. If someone has a heart attack on an airplane and a physician passenger steps up to help, the standard of care is lower than if the heart attack happens in a fully-equipped hospital. Some examples of flawed treatment include leaving a surgical instrument inside a patient or failing to observe sterile conditions and causing an infection. For purposes of medical malpractice, it does not matter whether it was a surgeon job or surgical tech job to count the instruments. The doctor is responsible for managing the treatment.
This error arises from the doctrine of informed consent. Before a doctor can provide medical care, the doctor must inform the patient of the:
- Options for treatment
- Risks and possible side effects of each course of treatment
- Expected outcomes for each course of treatment
At the end of the discussion about the treatment, the doctor must obtain consent from the patient to a course of treatment. In obtaining consent, a doctor can obtain express consent, which is verbal, or implied consent, which is implied by the circumstances. For example, if the patient signs a consent form or says, ‘yes,’ the consent is expressed. If the patient shows up for the treatment appointment or fills the prescription, consent is implied.
Errors can occur either in the pre-consent discussion or in obtaining consent. Some examples of communication errors that you can consider when you analyze how to sue for medical malpractice include:
- Miscommunication: A healthcare provider is responsible for ensuring that the patient understands the discussion. If the patient is delirious, unconscious, or has a mental or developmental condition that inhibits their ability to understand, the doctor must talk to someone who can act on behalf of the patient. In an emergency situation, the doctor can provide life-saving treatment even if the patient cannot communicate.
- Non-communication: If a doctor leaves something out of the discussion, such as an alternative treatment or known risk, the doctor might have committed a communication error. Thus, a doctor who fails to disclose that hair transplant surgery could result in an infection will probably be liable if the disclosure would have changed the patient’s mind about the surgery.
- Non-consent: If a doctor does not obtain consent, the failure could constitute malpractice. However, the circumstances will dictate whether the doctor acted unreasonably. In an emergency situation, the necessity of consent is much lower.
Know Who Can Sue
Just as important as answering ‘how to sue for medical malpractice’ is answering ‘who can sue for medical malpractice.’
Generally speaking, the person who was injured sues for medical malpractice. But under some circumstances, this may be different.
- Minors: Children injured in a medical malpractice claim have a few options. Medical malpractice lawyers can sue in the name of the child. Alternatively, some states allow the child’s parents to sue on their behalf. And in many states, the statute of limitations stops until the child turns 18, so the child can sue as an adult.
- Wards: Sometimes the patient is unable to act on their own. This could arise from the patient’s medical condition or result from the medical malpractice. Regardless of the cause, a court can appoint a legal guardian to file a lawsuit on behalf of the ward. If the incapacitated person signed a ‘durable power of attorney’ during their estate planning, this would also be effective to authorize the attorney-in-fact to file a malpractice lawsuit on their behalf.
- Deceased: When someone dies as a result of medical malpractice, a wrongful death lawsuit can be brought. The correct party for a wrongful death lawsuit depends on your state. In some states, a wrongful death lawsuit is brought by the deceased person’s estate. The theory is that the lawsuit would have belonged to the person who died, but passes to the estate upon their death. In other states, a wrongful death lawsuit is brought by the survivors of the deceased. The theory is that the survivors were wronged by the medical malpractice because they lost their loved one. When determining how to sue for medical malpractice after a death, you should consult wrongful death law attorneys to make sure the right party is named in the lawsuit.
Understand the Difference Between Crimes and Malpractice
The behavior of your healthcare provider might have crossed over from the civil wrong of malpractice into a crime. Under these circumstances, you will report the crime and sue for medical malpractice.
Two examples where how to sue for medical malpractice might include reporting a crime are:
- Nursing home abuse: When elderly residents are abused, this constitutes both medical malpractice and assault.
- Sexual assault: When a doctor sexually assaults a patient under the guise of medical treatment, the doctor commits a crime and medical malpractice.
- If you believe your doctor’s actions crossed the line into criminal activity, you can consult a criminal law attorney. Criminal law attorneys do not just represent criminal defendants. Many represent victims of crimes as well.
Document Your Injuries for Your Medical Malpractice Lawyer
The last step in how to sue for medical malpractice before you hire a lawyer is to gather all your documents to support your claim. Lawsuits require evidence and your documents provide a starting place whether you were injured in surgery or in an orthodontic procedure to fix rotated tooth.
Some documents your lawyer will need include:
- Medical records of your injury and the treatment you needed to correct the malpractice.
- Medical bills
- Pay records to show how much work you missed due to the malpractice.
- Going through medical malpractice can be traumatizing. You trusted your doctor for advice and treatment but were betrayed. But preparing by understanding how to sue for medical malpractice can make your lawsuit go much smoother.