Suing your doctor or hospital for medical malpractice

The heart of a medical malpractice suit is found in a physician's negligence. If a doctor acts in a negligent manner, and the act causes her patient to suffer injury, the patient can sue her for malpractice. There are numerous requirements that must be met before such a lawsuit can be filed, however.

The purpose of this article is to clarify those requirements. We'll begin by describing the different types of medical malpractice cases that can be filed. We'll then explore the most important factors to keep in mind when deciding whether to pursue your case. Note that the following discussion is not a substitute for legal advice. If you're considering suing your doctor or hospital for medical malpractice, consult an attorney with experience in such cases.

Common forms of medical malpractice

There is no shortage of shocking stories about physicians unwittingly operating on the wrong organs or body parts. In fact, it happens more often than most people imagine. A recent editorial in The Wall Street Journal was written by a surgeon who claimed he and his peers operate on the wrong body parts up to 40 times a week. Such mistakes are not always the fault of the surgeons, but instead the interns who prep the patients. Regardless, medical malpractice lawsuits often follow (assuming the patient lives).

But malpractice cases can stem from a variety of circumstances. For example, treatment that suggests a lack of competence on the doctor's part can result in a lawsuit. So too can a physician's improper diagnosis, particularly when misdiagnosis results in the patient suffering an adverse outcome. If a doctor prescribes a specific form of treatment without cautioning the patient about the associated risks, he or she can potentially face a malpractice suit.

These are the most common reasons patients file lawsuits against their doctors and the hospitals from which they receive treatment or an examination. They cover most situations in which patients are injured as the result of their physicians' negligence or incompetence. But before a medical malpractice claim can be filed, certain requirements must be met. We'll discuss them below.

Were you the doctor's patient?

In order for a malpractice case to have merit, the would-be plaintiff must have been the doctor's patient at the time the act in question (e.g. improper treatment, missed diagnosis, etc.) was committed. It is not enough that the plaintiff spoke casually to the doctor outside the hospital. There must have been an explicit physician-patient relationship.

Were you diagnosed and/or treated competently?

A lot of people misunderstand this requirement. They assume they have a right to expect the best treatment possible, and anything less that results in an imperfect outcome is grounds for a claim. In truth, physicians are not obliged to deliver the best treatment possible. They need only demonstrate that they performed at a competent level given the circumstances.

Patients considering a malpractice claim must demonstrate that their physicians acted in a manner inconsistent with the level of care that would have been delivered by a competent physician. If the doctor is shown to have acted competently, the patient is unlikely to have sufficient grounds for a lawsuit, despite suffering injury.

What was the cause of your injury?

Injury or the death of a patient following treatment may not have been caused by the treating doctor. For example, a hip replacement may result in an infection that ultimately proves lethal. It is a widely-known fact that foreign objects in the body often cause infections. This being the case, the surgeon who installed the hip implant may be completely free of fault. The patient - or in our example, his or her surviving family - would need to demonstrate a causal relationship between the surgeon's actions and the patient's death.

How did you suffer from the physician's negligence?

It is not enough to show that a doctor's negligence or incompetence resulted in an injury. In order to pursue a medical malpractice case, the would-be plaintiff must prove that his or her injury resulted in some form of damage. For example, suppose that while removing a patient's gallbladder, the surgeon inadvertently excises a larger piece of the bile duct than necessary. If the patient shows no noticeable signs of damage, he or she will be unable to sue for malpractice.

Damage in the context of medical injury can include pain, lost income from missed work, or even rehabilitation costs. The point is that the patient must demonstrate how the injury adversely affected him or her.

A large number of legal issues are complicated. But medical malpractice issues are particularly so since they often involve specific aspects of diagnosing conditions, surgical treatment, and disease processes. For these reasons, litigating and winning such cases is often difficult.

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