Medical negligence happens when a doctor or medical professional fails to provide proper care. Everyone has a duty not to negligently cause injuries. However, doctors have a special duty of care based on their training, experience, and responsibilities to their patients.
When medical negligence causes injuries to a patient, the patient may be able to recover money from the negligent doctor to pay for their losses. Medical accident damages can include costs of medical care, future medical needs, medication, lost income, pain and suffering, and any other losses caused by negligence.
Medical negligence lawsuits, also called medical malpractice claims, are treated differently than other negligence claims. If you have questions about whether your medical injuries were caused by negligence, talk to an experienced medical malpractice lawyer for legal advice about your case.
What Is Medical Negligence?
Medical negligence is like medical malpractice but some countries like the U.K. and Australia prefer the term medical negligence. In the U.S., it is more commonly called medical malpractice. However, either term is generally used to protect patients who are injured by medical mistakes.
Negligence is generally defined as the failure to exercise the degree of care, skill, or diligence that a reasonable person would exercise under similar circumstances. Negligence could be an act or failure to act. In a lawsuit, proving negligence generally means meeting 4 elements:
- Duty
- Breach
- Causation
- Harm
With a medical malpractice or medical negligence case, the elements are similar but the standards for a breach of care are different. Doctors have a specialized duty of care to perform as a reasonable doctor would under similar circumstances. That is known as the medical standard of care.
What Is the Medical Standard or Care for Negligence?
To win a medical malpractice case, the injury victim generally has to prove:
- The doctor owed the patient a duty of care;
- The doctor breached that duty of care;
- The patient suffered an injury caused by the doctor’s negligence; and
- The patient suffered harm as a result.
The medical standard of care means that medical professionals have to provide the same type and level of care that a reasonable healthcare professional with the same training and experience would provide under similar circumstances. If the doctor does something different, it can be considered a deviation from medical standards.
There can be a general standard for medical negligence for doctors or there could be specific standards for medical specialists. There are hundreds of specialties and subspecialties that for specific medical needs, including:
- Allergist
- Anesthesiologist
- Colon and Rectal Surgeon
- Dermatologist
- Emergency Medicine
- Family Medicine
- Internal Medicine
- Medical Genetics and Genomics
- Neurological Surgeon
- Nuclear Medicine
- Obstetrics and Gynecology (OB/GYN)
- Ophthalmologist
- Orthopedic Surgeon
- Otolaryngologist
- Pathologist
- Pediatrician
- Physical Medicine and Rehabilitation
- Plastic Surgeon
- Preventative Medicine
- Psychiatry and Neurology
- Radiologist
- Surgery
- Thoracic Surgery
- Urologist
For specialists, the standard of care compares against reasonable doctors in the same specialty. For example, an injury victim claims they were injured because their anesthesiologist deviated from medical standards. A jury would determine if the anesthesiologist did something that a reasonable anesthesiologist would not have done under similar circumstances.
Medical negligence cases are more complex than other negligence cases because they generally require specialized medical understanding. In a malpractice lawsuit, this means using a medical expert to review the case and provide a report on the doctor’s care. The expert can also testify to the jury how the specialist deviated from medical standards and caused the patient’s injuries. Medical experts are generally in the same specialty area as the doctors involved in the case.
Expert Certification of Medical Negligence
In some states, there are additional requirements in a medical negligence case where the injury victim has to find an expert to certify the basis of the claim. This can be known as a certificate of merit or an affidavit of merit. States passed these laws with the support of the medical industry to make it harder to file a malpractice claim.
For example, in Maryland, the plaintiff must file an affidavit of merit within 90 days of filing a Health Care Alternative Dispute Resolution Office claim. The certificate from a medical expert attests to a departure from standards of care and that the departure from standards of care is the proximate cause of the alleged injury.
Medical Negligence by Geographic Area and Setting
In most states, medical standards are based on general medical professional standards and not on the locality. However, in other cases, the area where the medical mistakes occurred can have an impact on the standard for medical negligence.
For example, the standards for medical care may be different in a large city like Philadelphia or Chicago because there may be more access to specialty care and medical resources. However, doctors in small towns or rural communities may have fewer medical resources.
When You Don’t Need to Prove Medical Negligence
Injury victims don’t always have to prove medical negligence. Some medical injuries don’t require proof of negligence because of the type of injury. For some medical injuries, the injury speaks for itself. This is known in Latin as res ipsa loquitur, for “the thing speaks for itself.”
A non-medical example of res ipsa loquitur is a piano falling out of a window and landing on someone. A window falling from a building is not something that happens unless someone was negligent. Medical examples that could involve res ipsa loquitur may include:
- Retained foreign object after surgery
- Wrong patient surgery
- Wrong site surgery
- Wrong side surgery
In medicine, these types of accidents are known as never events because they never happen without negligence. According to the Agency for Healthcare Research and Quality, the term never event “has expanded to signify adverse events that are unambiguous (clearly identifiable and measurable), serious (resulting in death or significant disability), and usually preventable.”
If you went in for surgery to have a cancerous left kidney removed and woke up to see scars on your right side, you may recognize immediately that you were a victim of a never event. If a doctor takes out a healthy kidney and leaves behind the damaged kidney, the patient may be left with no kidney functions. The surgeon, surgical team, and hospital could all be responsible for failing to follow standard medical practices, which caused serious harm to the patient.
Operating on the wrong patient or the wrong body part are similar types of never events that only happen if the doctors are doing something wrong. A retained foreign object injury is another never event that only happens when doctors, nurses, surgeons, or other healthcare workers fail to provide proper care, leaving a foreign object in a patient after surgery.
Negligence and Defective Medical Devices
A defective medical device injury is another type of claim where the injury victim generally doesn’t have to prove negligence. Defective product liability claims generally only have to prove that there was a defect in the product that caused an injury. In a product liability case, the injury victim can recover damages from anyone along the supply chain, including the manufacturer or distributor.
Product defect cases that involve medical injuries can include defective medical devices or defective medication. Defects can involve:
- Design defects
- Manufacturing defects
- Failure to warn injuries
When there are problems with the way an implanted medical device is designed it can break down, releasing dangerous or toxic materials in the body. For example, defective metal hip implants left behind metal shavings, causing serious harm in some patients. Defective medication can have too much of the active ingredient, too little, or be contaminated, passing on infections to the patients.
Negligence for Other Hospital Employees
Not all medical care providers are held to the standards of a doctor. During your medical care, you may be in contact with hundreds of medical employees at all stages of training. Non-doctor workers can include:
- Nurses
- Nurses aides
- Food service workers
- Cleaning staff
- Diagnostic techs
- Emergency medical technicians (EMTs)
- ER techs
- Hospital volunteers
What happens if you were injured because of a hospital employee’s negligence? If you were injured because of common negligence, you can still file a negligence claim for your injuries. It may also be simpler because the standards of care may be just like those of a reasonable person. Types of hospital injuries that can be caused by hospital employees may include:
- Slip and fall injury
- Premises liability
- Assault
- Ambulance injuries
- Burns
- Infection injuries
For example, if a hospital worker wasn’t looking where they were going with a heavy cart and knocked you over, causing you to suffer a broken hip, you may have a negligence claim against the worker. This means showing that the employee owed you a duty of care, the hospital worker breached their duty by not watching where they were wheeling a cart, which caused your injuries.
Some injury victims think they don’t have much of a negligence claim because the worker may not have enough money to pay for the injuries. However, employees are generally the responsibility of their employers. An employer is vicariously liable for an employee’s negligence. Hospitals could also be liable for the negligence of an employee if they don’t provide the proper level of supervision or training.
What Is Next After Proving Medical Negligence?
If a jury finds a doctor was negligent and caused your injuries, you can show the damages suffered. In a medical negligence claim, the injury victim seeks an award for an amount of money to pay for their losses. This can include economic and non-economic losses.
Economic damages in a medical negligence claim can include medical bills, future healthcare costs, loss of income, and loss of earning potential. You can usually show these costs through medical bills and pay stubs. For future or continuing losses, you may have an expert witness provide a report on the estimated costs of someone in your condition, including a range of possible scenarios and costs.
Non-economic damages may be harder to put a clear price on but they are very real losses. For example, if someone underwent an unnecessary medical procedure and was left with chronic pain, how do you estimate the value of a lifetime of pain caused by medical negligence? Fortunately, juries can often provide a fair estimate of non-economic damages to award the victim. Types of non-economic losses can include:
- Pain and suffering
- Loss of enjoyment in life
- Loss of consortium
- Scarring and disfigurement
- Emotional distress
How Do I File a Medical Negligence Claim?
This information provides an overview of medical negligence cases. However, if you think you might have a case, you should consult with an experienced attorney for advice. It is important to know that there is a time limit to file a medical malpractice lawsuit. This is known as the statute of limitations.
The statute of limitations for medical malpractice lawsuits is different in every state. There may also be exceptions for some types of injuries, like medical negligence involving children or injuries that were discovered after treatment. Talk to an experienced malpractice lawyer as soon as you can to make sure your claim is filed in time. If you file just one day too late, you might lose all chances of recovering damages.
Medical malpractice cases are complex and often require using medical experts to review your medical treatment. This is why many injury victims seek out a medical team with extensive experience in handling medical negligence claims. These types of trial attorneys who represent medical injury victims understand the state laws for filing malpractice claims, how to deal with the insurance companies, and how to negotiate to get the maximum settlement available.
If you think you may have been injured because of medical negligence, get the right legal team on your side. Experienced medical malpractice lawyers, like the trial attorneys at Gilman & Bedigian, have extensive experience in malpractice claims because they focus on just these types of cases.
With the right legal team on your side, you will have the resources to help you recover damages after suffering a medical negligence injury. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.