What you need to know about medical malpractice

The mere phrase “malpractice lawsuit” has struck fear in the hearts of many healthcare providers, and for good reason. A study published in the New England Journal of Medicine in 2011 estimated that by age 65 years, most physicians (75% in low-risk specialties and 99% in high-risk specialties) will have faced a malpractice claim. While the numbers are lower for other healthcare providers — including nurse practitioners, physician assistants and pharmacists — essentially all healthcare providers are at risk of being sued for medical malpractice. In the case of non-physician practitioners, it is more likely that the practitioner’s employer (i.e., hospital or pharmacy) will be sued, rather than the practitioner individually because the employer is generally regarded as the one with “deep pockets.” Regardless, if either you or your employer is being sued based on something you did — or didn’t do — it is essential to understand the basic elements of medical malpractice.

Medical malpractice is part of the tort of negligence and can take many forms, including failure to diagnose, misdiagnosis, improper medication or dosage, poor follow-up, failure to recognize symptoms, unnecessary surgery and misreading laboratory results. In order for a medical malpractice case to succeed, there are four essential elements that must be proven. If these four elements are not proven, then a healthcare practitioner cannot be found liable.

The elements of medical malpractice

  • Duty: The first element that must be shown is that the practitioner owed a professional duty to the patient. This is clearly the case in a situation where a patient is being treated by his/her healthcare practitioner, or when a patient is seeking advice or picking up medication from his/her pharmacist.
  • Breach: The second element is breach of the duty owed to the patient, meaning that the practitioner did not provide to the standard of care that was required.
  • Injury: The third required element is that the breach of duty caused an injury.
  • Damages: The final required element for medical malpractice is that the injury resulted in damages. Damages can be either economic (e.g., unable to work, medical bills) or non-economic (e.g., pain and suffering, loss of consortium).

What is and isn’t medical malpractice?
Now that we understand the four required elements to prove a medical malpractice case, let’s look at a couple of scenarios and decide if they do or do not amount to medical malpractice.

  • A surgeon removes the wrong kidney of a patient. Malpractice? Yes. The surgeon owed and breached a duty of care to the patient, injury and damage to the patient resulted from the breach.
  • Pharmacist gives patient the wrong medication, but patient realizes this before she takes it. Malpractice? No. A mistake was made, yes; however, no injury or damage resulted from it.
  • Nurse is supposed to give a patient epinephrine via injection, but instead puts it in the patient’s IV. Nurse realizes mistake immediately and notifies supervisors. Malpractice? It depends on whether the patient suffered injury. In this particular case, the patient experienced heart palpitations and anxiety, but suffered no actual damages, so the nurse was found not liable. Had the patient suffered actual harm, the outcome might have been different.
  • A sponge is left inside a patient after surgery, and the patient needs another surgery to remove it after the fact. Malpractice? Yes. The operating room staff had a duty to the patient that was breached. The patient suffered harm and had to have an unnecessary surgery to correct the situation.

As you can see, a mere mistake does not necessarily mean that medical malpractice occurred. Unless all four of the elements can be proven — including injury and damages — the case will not stand up in court.


Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.

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