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What is Considered Medical Malpractice?

Updated on March 15, 2016

When patients go to a doctor, they expect to receive expert care that will improve or maintain their health. However, medical treatment doesn’t always result in the happy outcome patients desire. The Journal of Patient Safety reported in 2013 that each year between 210,000 and 440,000 hospitalized patients suffer preventable harm during treatment that contributes to their death, and many more suffer harm that does not result in death. However, not every adverse outcome is the result of medical malpractice. To qualify as medical malpractice, the situation must meet certain basic requirements.


The first, and usually easiest, standard to meet is proving a duty of care. What this means is that the doctor had a professional obligation to provide competent care to the patient—this duty is assumed when a doctor agrees to provide treatment. However, it does mean that, for example, Dr. Oz could not be sued by someone who saw him on TV, followed his advice, and had a bad reaction. Without a doctor-patient relationship, there is no duty of care.

Second, it must be shown that the situation involved negligence on the physician’s part. In other words, if the care that the patient received was not up to the generally accepted medical standard of care, it would be considered negligent. Again, just because treatment didn’t go the way a patient expected does not mean it was negligent. If, say, your doctor prescribes a course of penicillin to treat strep throat, and you break out in hives from a previously undiscovered allergy, that is not malpractice, because antibiotics are the usual and accepted treatment for strep. Most potential malpractice cases are not nearly as simple as that, however. Determining whether or not a particular case meets the threshold of negligence often requires expert witnesses to examine the facts in relation to typical practice in such cases and established professional medical standards.


Third, the patient must have suffered an injury. In some cases, it may be obvious that a doctor made a mistake in care, either through doing something they shouldn’t have or not doing something they should, but if the patient has not been harmed, then the error is not considered malpractice. If a patient was administered the wrong medication but felt fine afterward, there would be no basis for a claim. However, according to medical malpractice lawyers at Hodes, Milman & Liebeck, if a patient suffers physical pain or mental anguish, incurs additional medical expenses to deal with the aftermath of the mistake, or is prevented from working because of the harm done, they are entitled to pursue a malpractice claim.

The final step is proving causation. The injury in question has to have been caused by the negligent care the patient received. This can be difficult to establish in seriously ill patients, where a doctor might argue that an adverse outcome was related to the health condition and not the care the patient received. Again, expert testimony would likely be required to satisfy this requirement.

If you have suffered harm as the result of medical treatment, an attorney specializing in medical malpractice can help you determine if your case satisfies the requirements for pursuing legal action against your doctor.


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