Medical Malpractice


Medical malpractice is professional negligence by an act or omission of a health care provider which violates the governing standard of care when providing treatment to a patient. Medical malpractice also occurs when a medical professional “deviates from accepted standards of practice in the medical community causing injury or death to the patient.”

Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take medically appropriate action. Examples of medical malpractice include:

  • Misdiagnosis of, or failure to diagnose, a disease or medical condition;
  • Unreasonable delay in treating a diagnosed medical condition;
  • Failure to provide appropriate treatment for a medical condition; etc.

Generally, to succeed in a medical malpractice claim, the claimant needs to establish the following four elements:

  • A legal duty was owed.
  • That legal duty was breached.
  • The breach of duty was a proximate cause of the injury.
  • The injury resulted in damage (pecuniary or emotional).

Medical malpractice claims can be brought against the health care provider, which usually refers to a physician. The term, however, includes any medical care provider such as dentists, nurses, psychologists and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), nurses and other non-physicians cannot escape from the liability when committing negligent acts.

Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees. To offset the risk and costs of lawsuits based on medical malpractice, health care providers opt for professional liability insurance.

Trial of Medical Malpractice Cases:

For claiming medical malpractice, the plaintiff or their attorney needs to file a lawsuit in the Court of appropriate jurisdiction within the time limit as prescribed by state law. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories and requests for documents and depositions. If both parties agree, the case may be settled on pre-trial negotiations. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance of evidence. Standards and regulations for medical malpractice vary by state to state as per state laws. The fact-finder judge will render a verdict for the prevailing party. If the plaintiff prevails, the fact-finder judge will assess damages within the parameters of the judge’s instructions.

Expert Testimony

In trial, both parties will usually present experts to testify as to the standard of care required and other technical issues. Expert testimony must be qualified by the Court, based on the prospective expert’s qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice claim, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the Court to qualify the expert to give a reliable opinion on a relevant issue.

The trial Court judge must consider evidence presented to determine whether an expert’s testimony rests on a reliable foundation and is relevant to the task at hand. The other model is the Frye test which relies on scientific consensus to assess the admissibility of novel scientific evidence. Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence. However some state Courts still use this test.

Type of Damages:

Damages may include compensatory and punitive damages.

* Compensatory damages are both economic and non-economic.
* Economic damages include financial losses such as lost wages, medical expenses and life care expenses.

These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress.

Punitive damages are only awarded in the event of wanton and reckless conduct.

Impact of Tort Reforms:

Medical malpractice law has been significantly affected by tort reforms. Medical professional and insurance companies have criticized it for being expensive, adversarial, unpredictable, and inefficient. It is said that the cost of medical malpractice litigation has steadily increased at almost 12% annually since 1975. These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems.

The major tort reform proposals have been:

  • Limits on noneconomic damages.
  • Special medical malpractice Courts
  • Reduction in the statute of limitation of action
  • Expert testimony

Medical malpractice law is a highly technical field of law and the lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed.

Even within the specialized practice of medical malpractice law, there can be some attorneys who have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, etc.

Due to the highly technical nature of medical malpractice law it is adviseable to hire an attorney who has the resources necessary to develop the case, hire appropriate experts and, if necessary, to take the case to trial.

Most medical malpractice attorneys take their cases on a “contingency” basis, where the attorney fee is a percentage of the amount recovered from the defendant through judgment or settlement.

Please contact the Law Offices of Douglas C. Anton, Esq. for a case evaluation and to schedule an appointment.

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The Law Offices of Douglas C. Anton, Esq. offers clients his wealth of legal experience, advice, and representation in a wide variety of areas, including, but not limited to, the following:


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