The field of medical malpractice law is a complex one. As a result, no attempt will be made here to cover all of its various facets. However, there are some general propositions that might help those persons who are considering the pursuit of such a claim. These are discussed below, recognizing that a thorough evaluation of the medical facts in question in relation to applicable medical malpractice laws is necessary before a determination can be made as to whether an actual claim or lawsuit should be brought.

I. Each state has different laws, rules, procedures, and the like; however, generally, to recover for a medical malpractice claim you must be able to prove with competent evidence:

a. Negligence - The health care provider(s) in question (doctor, nurse, hospital, etc.) acted in a manner that was below acceptable standards of care. Perfect conduct is not required, but the conduct must have been medically unreasonable. Bad or unexpected results do not necessarily mean that a health care provider has acted negligently.

b. Proximate cause - The negligent conduct must have been a cause of damage to the patient and it must have been reasonably foreseeable that such type of conduct could cause damage. For example, sometimes it can be thought of as: "Would an earlier diagnosis, or a different course of treatment or care, probably (not just possibly) have made a measurable difference in the patient’s outcome?" Some jurisdictions recognize a loss of chance: "Did the negligent conduct reduce the chance of recovery?"

c. Damages - There are usually several categories both for the past, and for what in probability (not just possibility) will occur in the future. Below are just some examples that may apply:

For the victim:

(1) medical bills, and other reasonably related out-of-pocket expenses.

(2) lost earnings or diminished earning capacity.

(3) physical pain and emotional suffering, distress, or anguish.

(4) physical impairment.

(5) physical disfigurement.

For the victim’s family, if the victim has passed away:

(1) Some relatives (usually limited to the spouse, parents, and children) are entitled to compensation for their mental anguish, loss of companionship and society, loss of financial support, loss of inheritance, etc.

(2) Sometimes heirs are entitled to receive compensation for damages the victim sustained after the negligent conduct occurred, but before his or her death. These are frequently called survivorship damages, meaning these are the damages the victim would have recovered if he or she had survived, such as the pain and suffering the victim went through before his or her death.

(3) Funeral expenses.

 For the victim’s spouse or children, if the victim has been significantly injured:

(1) Loss of consortium. This means the damage to the marital or parent-child relationship, which can include emotional support, companionship, care, and the like.

(2) Loss of household services.

2. Some other considerations or factors that may be involved concerning a potential medical malpractice claim:

a. Statute of Limitations - These are deadlines by which a lawsuit must be filed or notice of claim letters sent out, or the right to pursue the claim is forever lost. In many states that deadline is within two years after the negligent conduct occurred. In other states, the deadline is within two years after the conduct or injury was, or should have been, discovered by the patient. Some states have limitations that are only one year in length and some have a three-year statute of limitations. Therefore, it is very important to act on a timely basis to investigate a potential malpractice claim.

b. Limitations on Damages - Some state legislatures have placed limits on the amounts of damages a patient can recover in a medical malpractice suit, especially for intangible items such as pain, anguish, disfigurement, and the like.

c. Expert Witnesses - Usually states require that the patient have an expert witness, such as another physician, who will testify that the health care providers were negligent and that such improper conduct was a cause of damage to the patient. Sometimes an opinion letter or affidavit from such expert must be filed with the lawsuit or shortly thereafter. Your attorney will typically be the one to locate such a witness or witnesses.

d. Review Boards - Some states have medical review boards, comprised of physicians and sometimes attorneys who review cases before a lawsuit is filed to encourage settlement of claims that are meritorious and discourage pursuit of claims they believe are groundless.

e. Immunities - There are usually restrictions on a person’s ability to sue health care providers that are affiliated with federal, state, county, or city governments, or with other political subdivisions. The rationale for this protection is rooted in the ancient concept of "sovereign immunity," dating back to when the King of England declared that private citizens could not sue him or the government for any conduct, no matter how wrongful. Nowadays, governmental entities, doctors, nurses, etc. can usually be sued for medical malpractice, but there are frequently restrictions on such things as the amount of damages that can be awarded and who determines the case (i.e. - sometimes a judge, rather than a jury). Also, there may be procedural hurdles that must be met before a claim can be brought.


John H. Rowley, Attorney at Law. 2007 All Rights Reserved.
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