Doctor Error | Definition and Examples of Litigation (2023)

Malpractice occurs when a physician fails to provide the same medical care or competency that would be expected from an ordinary medical provider in similar circumstances. This is professional negligence.

What is medical malpractice?

Not all situations involving medical error on the part of the doctor constitute malpractice. For a medical error to qualify as malpractice, the doctor's action must have caused harm and not be what the average doctor would expect in a similar situation. A physician's medical negligence (and the harm to the patient it causes) could be considered malpractice if the defendant physician's colleagues refrained from committing the error.

The subjective nature of this definition can cause confusion. After all, how does a patient know if another doctor will make the same mistake? For this reason, most successful malpractice lawsuits involve errors that deviate from established and generally accepted medical guidelines.

Medical error explained

Imagine two doctors treating the same patient with type 2 diabetes. Doctor A prescribes a new drug for the patient.A blood sugar control medicine called Invokana.A patient experiences a serious side effect from a medication and wants to sue the doctor for negligence. A lawyer explained that many other doctors in the same situation had prescribed the same drug, meaning that Doctor A's behavior was consistent with that of his colleagues. Doctor A has no medical malpractice.

Doctor B, on the other hand, prescribes the same hourly dose of high fructose corn syrup as the patient with type 2 diabetes. The patient soon developed nerve damage and ulcers that would not heal, and realized that the prescription was making the situation worse. After speaking with an attorney, the patient learned that no sane doctor would prescribe high fructose corn syrup as a means of controlling his blood sugar. Doctor B's behavior was not in line with the expectations of his colleagues, deviated from generally accepted treatment guidelines and was indeed misconduct.

Who can file a medical malpractice lawsuit?

In order to be able to take legal action against a doctor who made the mistake, a number of conditions must be met. The act must meet the following characteristics to qualify as medical malpractice deserving of judicial redress:

(Video) The Nurse and Doctor - Avoidable Medical Malpractice Case

  • obligation to care: The doctor and the complainant must be in a valid doctor-patient relationship at the time of the error.
  • Violation of the standard of care: Physicians must have made mistakes (negligence) that their medical colleagues would not have made under the same circumstances.
  • Injuries caused by non-compliance with the standard of care: The harm done to the patient must be a direct result of the physician's deviation from standard care.
  • damage: The wrongful violation should provide the plaintiff with remedies (such as physical pain, emotional pain, lost wages, and other legal damages).

The requirements prevent frivolous lawsuits, such as a lawsuit against a doctor who was overheard at a busy train station or at a cocktail party. They also created a common sense standard for determining whether embezzlement had occurred.If these requirements are met, the person can file a medical liability lawsuit against the treating doctor.However, in many cases it is still difficult to prove negligence.

For example, imagine a patient with metastatic pancreatic cancer whose doctor made a mistake.late diagnosisOne week. If the patient dies within a few weeks, the doctor may argue that the time of week doesn't matter. Of course, patients and their loved ones will feel they have missed an opportunity to find out if delay is a matter of life and death. However, proving negligence in this case can pose significant challenges.

In almost all cases, an expert opinion on the standard of care and the relationship between physician error and patient harm must be provided by a trained healthcare professional. Our legal partners are experienced medical malpractice attorneys who can help you determine the merits of your claim and find medical experts who can provide the necessary testimonies.

visit ourFrequently asked questions about malpracticeA page with more answers to the most frequently asked questions about medical malpractice.

Unique Considerations in Negligence Disputes

Before considering a medical malpractice claim, there are a few details that you need to know first.

(Video) Tort Law: The Rules of Medical Malpractice

  • The statute of limitations varies by state: Most states require plaintiffs to file a complaint within a specified time after a defect is claimed.
  • Premium cap for medical malpractice: Some states limit damages, punitive damages, and/or aggregate damages in claims of medical malpractice.
  • notification of the defendant: In some areas, state law requires plaintiffs to notify the subject of their misconduct complaint of their intention to sue. The message may contain information about alleged negligence and claims.

State laws regarding malpractice and related claims vary widely. You should discuss any potential case with one of our experienced medical malpractice attorneys as soon as possible to maximize the chances of success.Submit your free case evaluation now.

Statutes of limitations for medical malpractice by state

Find the time limits for medical malpractice suits in your state

ConditionStatute of limitations for adults
AlabamaTwo years from the event or six months of knowledge up to a maximum of four years from the event
Alaskawe have known each other for two years
Arizonatwo years after the incident
Arkansastwo years after the incident
CaliforniaThe first of two years after the event or one year after the announcement
ColoradoTwo years after the incident and a maximum of three years, unless there are foreign bodies or objects hidden intentionally.
ConnecticutTwo years after the incident, three years at the latest if the act was deliberately concealed
DelawareTwo years after the event, in the case of delayed consciousness three years at the latest
FloridaTwo years from the event or knowledge and a maximum of four years from the event
GeorgiaTwo years after event or death, or no more than five years if consciousness is delayed
HawaiiTwo years from knowledge and a maximum of six years from the event
Idahotwo years after the incident
IllinoisTwo years from knowledge and a maximum of four years from the event
Indianatwo years after the incident
IowaNo longer than six years from knowledge, unless it is a foreign body
KansasTwo years from event to notoriety, four years
KentuckyOne year from the event or knowledge, but no more than five years from the event
LouisianaOne year from the event or knowledge and a maximum of three years from the event
MarylandThree years from the event or knowledge
MassachusettsThree years after the event or notice, no more than seven years after the event, unless
MichiganTwo years from the event or six months from knowledge, but no more than six years from the event
Minnesotafour years after the incident
MississippiTwo years from the event or knowledge, maximum seven years from the event
measurementstwo years after the incident
MontanaTwo years from the event or knowledge and a maximum of five years from the event
NebraskaTwo years after the event or one year after knowledge, up to 10 years after the event
NevadaThree years incident or one year knowledge
New HampshireThree years from the event or knowledge
New Jerseytwo years after the incident
New MexicoThree years after the incident
New Yorktwo and a half years
North CarolinaTwo years after the event or one year after becoming aware, but not more than four years after the event
North DakotaTwo years from knowledge and a maximum of six years from the event
OhioOne year from the event or knowledge, but no more than four years from the event
Oklahoma-Statewe have known each other for two years
OregonTwo years from the event or knowledge and a maximum of five years from the event
PennsylvaniaSeven years after the incident
Rhode IslandThree years from the event or knowledge
South CarolinaThree years after the event or the announcement, but no more than six years after the event
Dakota del Surtwo years after the incident
TennesseeOne year from the event or knowledge and a maximum of three years from the event
TexasTwo years from the event or knowledge, maximum 10 years from the event
UtahTwo years from knowledge and a maximum of four years from the event
VermontThree years after the event or two years after becoming aware, up to seven years after the event
VirginiaTwo years from the event or knowledge, maximum 10 years from the event
WashingtonThree years incident or one year knowledge
West VirginiaTwo years from the event or knowledge, maximum 10 years from the event
the state of WisconsinThree years after the event or one year after knowledge, but not more than five years after the event
WyomingTwo years from the event or notice
Most states have exceptions for children, foreign body injuries, intentional concealment of faults, and reproductive harm. The rules contained in this document apply only to general medical malpractice in adults.

Common characteristics of malpractice litigation

Missing or delaying diagnosis was the most commonly reported form of medical malpractice, according to one study. However, there are other common types of negligence that are often alleged in court cases.

(Video) Medical Malpractice Litigation: The Medical and Legal Perspectives

Common mistakes in medical malpractice claims

  • diagnostic error
  • late diagnosis
  • Error ordering diagnostic tests
  • Negligence in creating a follow-up plan
  • Skip the history or physical exam
  • Misinterpretation of test results
  • medication errors
  • surgical error

Patients who have suffered medical error from these acts often file medical malpractice claims for the following reasons:damage types:

  • light bodily harm
  • emotional pain or suffering
  • significant bodily harm
  • die
  • Lohnausfall
  • loss of the consortium
  • medical fees

Litigation for medical malpractice

Because medical malpractice lawsuits are typically filed in person, they don't garner as many headlines as corporate lawsuits.Baby pillowsÖrounding herbicideHowever, we have compiled some relevant examples of the claims we cover to help you understand malpractice litigation in practice.

(Video) Legal Terms and Terminology

$21.6 million: Lazard lawsuit

Marlande Lazard went to the doctor after discovering a lump in her breast and was diagnosed with mastitis. But when the bump persisted, Lazard knew something was wrong. A year later, she was diagnosed with inflammatory breast cancer after numerous doctors repeatedly misdiagnosed her condition.

A judge ruled in her favor and awarded her $21.6 million in damages after Marlande filed a lawsuit alleging a radiologist was responsible for her late diagnosis.

Have you or a loved one had a late or missed cancer diagnosis? Our personal injury attorneys can help

$1.85 million: Stennis suit

When Myra Stennis' son was born, Dr. Chris Rekkas with his hand the baby's shoulder out of the birth canal. Myra quickly noticed that her son's arm looked limp and one eye drooped.

After being told by Dr. learned of Rekkas' deedsNeglect caused Crumpke's son's paralysisStennis is suing his son for negligence at birth. She received $1.85 million.damages.

technical error terminology


In tort law, conduct that is not what a reasonable person would expect; in relation to medical malpractice, misconduct compared to a typical doctor in a similar situation

(Video) Medical Error, Ethics, and Apology by Richard George Boudreau


What are the 4 common errors that could lead to a medical malpractice lawsuit? ›

Learn the legal options that may be available to you by scheduling a consultation today.
  • Misdiagnosis And Failure To Diagnose. ...
  • Prescription Errors. ...
  • Surgical Errors. ...
  • Anesthesia Errors. ...
  • Childbirth Errors.

What is an example of a medical professional being negligent? ›

What is an example of medical negligence? There are many medical negligence examples including: Misdiagnosing patients or failing to diagnose them. Botched anesthesia or botched surgery, including leaving surgical instruments inside a patient.

What are the examples of errors in healthcare? ›

Among the problems that commonly occur during providing health care are adverse drug events and improper transfusions, misdiagnosis, under and overtreatment, surgical injuries and wrong-site surgery, suicides, restraint-related injuries or death, falls, burns, pressure ulcers, and mistaken patient identities.

What is the hardest element to prove in a medical malpractice case? ›

The hardest element of a medical malpractice case to prove is the breach of the duty of care, the second element. This is because proving that the medical provider acted in a way that was not reasonable can be difficult.

What is the most important type of evidence in a medical malpractice case? ›

Your medical record is the most important piece of evidence you can use to support your claim. It shows your original condition, the treatment you received, and your condition after receiving treatment.

What is the most common negligent tort in healthcare? ›

Incorrect medication prescriptions or administration of drugs is one of the most common cases of medical negligence reported. This can occur when a patient is prescribed the wrong drug for their illness, receives another patient's medication or receives an incorrect dosage of medication.

What is an example of malfeasance in healthcare? ›

Malfeasance in healthcare is also known as medical malpractice. If a patient dies because he or she is given the wrong medication or the improper dosage, then the doctor or healthcare worker who performed this act could be charged with medical malpractice.

What are the five most common types of medical malpractice? ›

The types of medical malpractice are as follows, starting with the five most common types:
  • Misdiagnosis. ...
  • Surgical errors. ...
  • Failure to treat. ...
  • Birth injuries. ...
  • Prescription drug errors. ...
  • Negligent cosmetic procedures. ...
  • Dental Mistakes. ...
  • Care Home Negligence.

What is the biggest malpractice suit ever? ›

Ten of the Largest Medical Malpractice Verdicts of 2022
  • $111 million verdict in Minnesota: Thapa v. ...
  • $97.4 million verdict in Iowa: Kromphardt v. ...
  • $77 million verdict in Georgia: The Estate of Nicholas Carusillo v. ...
  • $75 million verdict in Georgia: Buckelew v. ...
  • $68.8 million verdict in Florida: Crohan v.
Jan 17, 2023

What are the 6 elements of malpractice? ›

In order to prove negligence or malpractice, the following elements must be established:
  • Duty owed the patient;
  • Breach of duty owed the patient;
  • Foreseeability;
  • Causation;
  • Injury; and.
  • Damages.

What is an example of a misdiagnosis case? ›

Misdiagnosis - A doctor in a hospital fails to recognize cardiac tamponade in a 63-year-old man and the lack of diagnosis or treatment leads to his death. Delayed Diagnosis - A medical professional gives a delayed diagnosis of a bowel obstruction and the delay causes the patient's wrongful death.

What is it called when a doctor makes a mistake? ›

When a doctor makes an unavoidable mistake that another doctor would have made in the same circumstances, it's just a mistake. However, if they made a mistake as a result of negligence, it's called medical malpractice.

What is considered a med error? ›

A medication error is defined as "any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer,” according to the National Coordinating Council for Medication Error Reporting and Prevention.

What 4 elements need to be present for a malpractice lawsuit to be filed? ›

There are four elements of medical malpractice, including a medical duty of care, breach of the duty, injury caused by the breach, and damages.

What five 5 elements needed to be present to prove malpractice? ›

Do you want to hold another party accountable for their negligent behavior? Doing so means you and your lawyer must prove the five elements of negligence: duty, breach of duty, cause, in fact, proximate cause, and harm.

Why is it so hard to win a malpractice case? ›

Determining Liability

Another reason why medical malpractice claims are hard to win is that it can sometimes be difficult to determine who is responsible for your injuries. Most people automatically assume that physicians are liable for all medical injuries, but the truth may be more complicated.

What are the three C's to prevent malpractice? ›

Prevent, Communicate, Document: Medical Malpractice Data Help Us Manage Risk | The Doctors Company.

What is the basis for most medical malpractice claims? ›

The basis for most medical malpractice claims involves four elements: duty, breach, injury, and damages.

What use of evidence is common in a malpractice suit? ›

The most common form of evidence used in medical malpractice cases is the patient's testimony. This involves providing details about what happened before, during, and after the incident that resulted in injury. It also includes any conversations with doctors or other healthcare professionals involved in the case.

What is the most common cause of malpractice suits against physicians? ›

Misdiagnosis. Diagnosis is the foundation of medicine and patient care, which is also the likely reason errors in diagnosis are the most common type of medical error leading to medical malpractice lawsuits.

What are 3 examples of negligence tort? ›

Examples of negligence torts
  • Slip and fall accidents.
  • Car accidents.
  • Truck accidents.
  • Motorcycle accidents.
  • Pedestrian accidents.
  • Bicycle accidents.
  • Medical malpractice.

What is an example of a tort in the medical field? ›

There are a variety of specific torts including assault, battery, trespassing, negligence, product liability, and intentional infliction of emotional distress. In the healthcare setting, “wrongful death” is the name of the tort where the loss of life is due to medical negligence.

What is unethical but legal examples in healthcare? ›

For example, if a physician refuses to treat a patient because the patient cannot pay for the treatment, the physician's behavior is legal but may be deemed unethical.

What are three examples of unethical behavior in a healthcare situation? ›

This includes the following:
  • Withholding treatment to meet budgetary or insurance policy concerns.
  • “Upcoding” to secure patient treatment from an insurer.
  • Covering up a mistake.
  • Taking money from medical device manufacturers or pharmaceutical companies.
  • Failing to report an impaired colleague.
Apr 20, 2020

What is an example of unethical in healthcare? ›

For example, withholding information about a patient's condition could be unethical because it could harm the patient or someone else. The opposite can be harmful too. A health practitioner could be suspended or, in some cases, fired for posting information about cases on social media.

What is the difference between medical liability and malpractice? ›

It is vital to remember the very distinguished difference between Medical Malpractice and Professional liability. Medical Malpractice provides coverage for losses related to the human body, while Professional Liability provides coverage for financial losses.

What are the four 4 Ds of negligence in a medical malpractice action list and briefly describe them? ›

These elements, the “4 Ds” of medical negligence, are (1) duty, (2) deviation from the standard of care, (3) damages, and (4) direct cause. If you suffered serious injuries due to a doctor or other healthcare professional's negligence, you could be entitled to compensation for your losses.

What is the most common liability issues in healthcare? ›

Malpractice Suits

One of the most common legal liability hospitals face is malpractice lawsuits.

How much are most medical malpractice settlements? ›

The Average Settlement for Medical Malpractice Cases
  • Minor cases: Up to $10,000.
  • Short-term disabilities: $10,000 to $30,000.
  • Cases that require corrective measures: $30,000 to $100,000.
  • Severe cases: $100,000 to $500,000.
  • Permanent injury: Over $1,000,000.
Dec 2, 2022

What is the best defense against a malpractice suit? ›

Best practices in medical malpractice defense
  • Insurance.
  • Bedside manner matters.
  • Avoid communication problems.
  • Nuances of informed consent.
  • The importance of documentation.
  • Steps to take after a lawsuit is filed.
  • Get a lawyer immediately.
  • Prepare for deposition or pretrial statement.
Sep 28, 2022

Which states have the most medical malpractice lawsuits? ›

The States Where Medical Malpractice Suits Are Most Common

According to data from the NPDB, New York, California, and Florida had the highest number of medical malpractice suits between 2009 and 2018.

What are the 4 criteria that must be met in order to prove medical malpractice duty breach damages and causation? ›

To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages.

How do you prove negligence? ›

Four elements are required to establish a prima facie case of negligence:
  1. the existence of a legal duty that the defendant owed to the plaintiff.
  2. defendant's breach of that duty.
  3. plaintiff's sufferance of an injury.
  4. proof that defendant's breach caused the injury (typically defined through proximate cause)

What are the 4 elements necessary to prove negligence or malpractice? ›

A negligence claim requires that the person bringing the claim (the plaintiff) establish four distinct elements: duty of care, breach, causation, and damages.

How can I prove I was misdiagnosed? ›

In order to prove misdiagnosis, an individual must prove without a doubt that the doctor acted in a way that does match the competence and skill level of a similarly trained medical professional. Another way is by proving that your doctor did diagnose your condition correctly, but failed to appropriately follow up.

How do you prove you were misdiagnosed? ›

A patient trying to prove misdiagnosis must show that a doctor in the same or similar specialty would not have misdiagnosed the illness or injury. The plaintiff will have to show that the doctor did not include the correct diagnosis on the list and that a competent doctor would have included it.

What is the most misdiagnosed condition? ›

Cancer. Cancer misdiagnosis is the most common misdiagnosed disease of all. Different types of cancers are misdiagnosed as well which is why it's important to have a complete medical history of the patient, adequate time to evaluate the patient, and complete information of symptoms and medications.

Are doctors held accountable for mistakes? ›

All medical providers, including doctors, surgeons, anesthesiologists, physiatrists, nurses and therapists a have a legal responsibility to prevent harm to their patients. However, an error does not automatically equal medical malpractice.

What to do when Dr makes a mistake? ›

If it was the hospital that made the error, consider contacting the hospital's accrediting body, such as The Joint Commission or the California Department of Health. If it was a physician that made the error, you will want to contact the Medical Board of California, who controls that physician's medical license.

What kinds of mistakes can amount to medical malpractice? ›

Medical malpractice events can take many forms including, but not limited to, any of the following:
  • Misdiagnosing a serious health condition,
  • Misreading or ignoring laboratory results,
  • Premature discharge from a hospital,
  • Prescribing improper medication or dosage, or.
  • Failing to account for a patient's health history.

What are 70% of medical errors attributed to? ›

Other researchers have demonstrated that 70% of all medical errors can be attributed to poor healthcare team interactions.

What is an example of a clinical error? ›

Among the problems that commonly occur during providing health care are adverse drug events and improper transfusions, misdiagnosis, under and overtreatment, surgical injuries and wrong-site surgery, suicides, restraint-related injuries or death, falls, burns, pressure ulcers, and mistaken patient identities.

What are the four major areas of concern related to medical errors? ›

Technical errors (44 percent) Diagnosis (17 percent) Failure to prevent injury (12 percent) Errors in the use of a drug (10 percent)

What are 3 examples of medication errors? ›

Types of Medication Errors
  • Prescribing.
  • Omission.
  • Wrong time.
  • Unauthorized drug.
  • Improper dose.
  • Wrong dose prescription/wrong dose preparation.
  • Administration errors include the incorrect route of administration, giving the drug to the wrong patient, extra dose, or wrong rate.
Feb 26, 2023

What is an example of a medication error? ›

Examples of medication errors in care homes or nursing homes include not recording the resident's last dose of medication, and then another nurse double-dosing a patient due to the lack of information. Or, a resident taking an over-the-counter product that contradicts their current medication.

What are the 4 factors of malpractice? ›

To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages.

What 4 elements must be present to have a malpractice suit? ›

What Are The Four Elements Of Medical Malpractice?
  • The doctor or facility owed a professional duty of care.
  • There was a breach of duty.
  • The victim suffered injuries as a result of the negligence.
  • There were financial or intangible losses.

What are the 4 elements of a negligence malpractice cause of action? ›

The Four Elements of Medical Malpractice
  • Duty of care.
  • Breach of this duty of care.
  • Injury caused by the breach.
  • Resulting damages.

Is medical Gaslighting malpractice? ›

An improper, dismissive diagnosis might result. Known as medical gaslighting, errors such as these on a doctor's part could leave patients filing a medical malpractice claim.

What is a professional duty owed to the patient? ›

What is duty of care? When it comes to medical malpractice cases, a doctor owes a patient a duty of care at all times. This means that the doctor must provide adequate care to patients that is similar to the care any other reasonable person would provide in a similar situation.

What is breach of duty in negligence? ›

Breach of duty occurs when a person's conduct fails to meet an applicable standard of care. It is one of the four elements of negligence. If the defendant's conduct fails to meet the required standard of care, they are said to have breached that duty.

How is negligence proven? ›

To win in a negligence lawsuit, the victim must establish 4 elements: (1) the wrongdoer owed a duty to the victim, (2) the wrongdoer breached the duty, (3) the breach caused the injury (4) the victim suffered damages.

What is the most common tort in health care incidents? ›

Negligence is by far the most common type of tort.

Negligence occurs when a person fails to act carefully enough and another person gets hurt as a result.

What is direct causation in medical negligence? ›

3. Direct Causation - The Negligence Directly Caused Injury. Direct causation is the process of determining whether a physician's actions were the direct result of harm towards the patient. In many instances, determining direct causation is straightforward while other situations are more complex.

What is dereliction of duty in the medical field? ›

The second D of medical negligence is dereliction of duty. Dereliction refers to a failure to fulfill one's duty of care. A dereliction of duty by a medical professional describes any act or omission a reasonable and prudent professional would not have made in similar circumstances.

What is an unintentional tort and give an example? ›

Injury, damage to property, or financial loss are all examples of unintentional torts. Negligence is usually the root cause of unintentional tort. It's termed an unintentional tort when people do something they didn't mean to do, and a reasonable person would have known enough not to hurt someone else.


1. Medical Malpractice Litigation: The Medical and Legal Perspectives
(GBH Forum Network)
2. Litigation and the Paralegal's Role
(Arrow Consultants | Misty Murray)
3. Legal and Ethical Issues in Healthcare
(Emily Paige Essick)
4. Medical Malpractice Suits: What Every Physician Should Know (O. WILLIAM BROWN, MD, JD) March 1, 2018
(Houston Methodist DeBakey CV Education)
5. How Do I Know if I Have a Valid Medical Malpractice Case? | Kentucky Lawyer Explains
6. Why Doctors Make Mistakes S1E2 (Medical Errors Documentary) | Only Human
(Only Human)


Top Articles
Latest Posts
Article information

Author: Laurine Ryan

Last Updated: 25/06/2023

Views: 5582

Rating: 4.7 / 5 (57 voted)

Reviews: 88% of readers found this page helpful

Author information

Name: Laurine Ryan

Birthday: 1994-12-23

Address: Suite 751 871 Lissette Throughway, West Kittie, NH 41603

Phone: +2366831109631

Job: Sales Producer

Hobby: Creative writing, Motor sports, Do it yourself, Skateboarding, Coffee roasting, Calligraphy, Stand-up comedy

Introduction: My name is Laurine Ryan, I am a adorable, fair, graceful, spotless, gorgeous, homely, cooperative person who loves writing and wants to share my knowledge and understanding with you.