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Most doctors will be sued for malpractice at some point in their careers. A 2016 Medscape survey revealed about 80% of physicians age 60 and above had experienced at least one malpractice suit over the course of their careers. A similar analysis by the American Medical Association showed 60%of physicians over age 55 across all practice areas had been sued for malpractice at least once. The 10 most common causes of malpractice lawsuits against physicians are.
- Failure to diagnose
- Patient suffering an abnormal injury
- Failure to treat
- Poor documentation or patient instruction
- Errors in medication administration
- Not following safety procedures
- Improperly obtaining, or lack of, informed consent
- Not following up
- Retained surgical item (surgical sponge is most common)
- Unnecessary or incorrect surgery
Medical malpractice occurs when a patient is harmed by a doctor or other medical professional who fails to competently perform his or her medical duties. Each year in the United States, about 440,000 patients die from preventable medical errors. Medical error is the third leading cause of death, behind cancer and heart disease. Though the rules about medical malpractice vary from state to state, there are general principles and broad categories of rules that apply to most medical malpractice lawsuits.
Most medical malpractice claims fall into one of these categories:
- Failure to diagnose. If a competent doctor would have discovered the patient’s illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved, then the patient may have a viable medical malpractice claim.
- Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. It may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently.
- Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment, known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure in a way that the doctor should have warned could happen.
To prove that medical malpractice occurred, a patient must be able to show:
- A doctor-patient relationship existed. A patient must show that a physician-patient relationship with the doctor being sued.
- The doctor was negligent. The doctor must have been negligent in connection with diagnosis or treatment.
- The doctor’s negligence caused the injury. The patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor’s negligence caused the injury.
- The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards in his or her field, the doctor cannot be sued for malpractice if the patient did not suffer any harm. Examples of the types of harm patients can sue for include physical pain, mental anguish, additional medical bills and lost work and lost earning capacity.
Special requirements in medical malpractice lawsuits include:
- Medical malpractice cases must be brought soon after the injury. In most states, a medical malpractice lawsuit must be commenced within the applicable statute of limitations — often between six months and two years, depending on the state.
- Special medical malpractice review panels. Many states require the patient to first submit the claim to a malpractice review panel. This panel of experts will hear arguments, review evidence and expert testimony, and then decide whether malpractice has occurred.
- Special notice requirements. Some states require that the patient give the doctor notice of the malpractice claim, in the form of a basic description, before filing a lawsuit.
- Expert testimony is required. A qualified expert is usually required at trial. Often, expert testimony or an expert affidavit is required at the malpractice review panel proceedings prior to commencing trial.
- Limits on damage awards. Many states limit or “cap” the amount of money that can be awarded to a medical malpractice patient