What is malpractice?

Malpractice may arise from a professional's misconduct or failure to use adequate levels of care, skill or diligence in the performance of the professional's duties that causes harm to another. Malpractice typically occurs if a professional fails to exercise his or her professional skills in an assignment he or she has accepted at the standard of care, skill and learning applied circumstances by the average prudent reputable member of the profession in the give in the "community". Comparison of performance is based upon the standard of care for the professional in the "community" - what other professionals in the same field do for their clients who are located in the same geographic area.

In order for malpractice to be actionable, injury, the person who retained the professional’s services must suffer loss or damage, or those otherwise entitled to benefit from or rely upon the professional’s services.

Who can commit malpractice?

In theory, any professional who renders services upon which you and others rely upon can commit malpractice. Often, the professional is licensed or regulated by the state.

Accountants, attorneys, actuaries, chiropractors, dentists, physicians, psychologists and therapists are typically the persons named in a "malpractice action". When others engage in malpractice, the action usually not specifically called malpractice, but negligence. In actual practice, only those who hold themselves out as having special skills or abilities are held accountable in malpractice litigation.

How do I recover damages sustained due to malpractice?

The first inquiries help determine whether malpractice has been committed. Malpractice does not depend on "how nice" the professional was. What matters is what the professional did or failed to do? Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice.

You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you s/he's at fault. (He may not even know s/he's at fault.) In fact often an attorney has to hire an expert or consultant to help assess whether or not there was malpractice. Unless the facts are very clear, you generally would be asked to pay for the cost of that initial assessment.

Can I recover damages for malpractice from a professional corporation?

Generally, yes. The corporation itself would be liable and, depending on your state's law, some or all of its professionals may be personally liable for their malpractice. In many states the professional who provides services remains liable for his/her acts - the corporation does not shield him from responsibility his own professional malpractice.

Many states also require professional corporations to post a bond or maintain liability insurance protection for any of its (or its professionals') malpractice, errors and omissions.

What are some specifics with respect to medical malpractice?

Some states have laws that significantly limit the amount of damages that an injured person may recover as a result of medical malpractice. Many states also have shortened the applicable statute of limitations. Further, some states have established mandatory arbitration of medical malpractice disputes as a pre-requisite to a lawsuit for medical malpractice.

To prevail in a medical malpractice lawsuit, you must prove that your injury, loss or damage resulted from the doctor's deviation or failure to conform to the applicable standard of care for your condition in your community.

If a procedure was not successful, is that medical malpractice?

Medical malpractice does not occur every time medical treatment is not successful. Doctors are not guarantors of the services that they render. A doctor is, however, required to have the necessary knowledge and experience to perform the services in question. Further, doctors must exercise the skill and care that others in the community use when dealing with similar treatments.

What about the need for ‘informed consent’?

Medical professionals must obtain your informed consent prior to rendering medical treatment.

"Informed consent" is an individual's agreement to allow medical treatment to be rendered based upon full disclosure of all of the facts necessary to make an intelligent decision. In order to provide informed consent, you must be able to understand what the proposed medical treatment entails, what procedures will be used, whether drugs or surgery will be utilized, what the various alternatives are, as well as the potential risks and side effects. Whether or not the consent was "informed consent" is based on an analysis of all available information -- you must be able to understand the information and then have the mental ability to weigh and consider this information.

What if I couldn't give consent?

In the event of an illness or accident, a person may have been left in a physical and mental condition that prevent him or her from being able to understand information or making decisions based on the information provided. In such medical emergencies, unless you have a health care agent or attorney-in-fact for health care decisions who is available to provide medical professionals informed consent in your place, medical professionals may proceed without first obtaining informed consent.

Will I need an expert to prove malpractice has occurred?

Almost always, Yes. In order to establish malpractice, it will be necessary to prove what the standard of care in the community for that professional for handling a similar matter is. Lay people do not have the necessary education, experience or skills to act as a professional -- or to gauge what a professional is supposed to do or refrain from doing in a particular situation.

In order to determine what should or should not have been done in your particular circumstances, someone with the requisite education, experience and skill would be needed to establish what the standard of the community is. Many malpractice lawsuits are won/lost based upon the effectiveness of the expert.

Your attorney, to maintain confidentiality and retain your rights, should always hire experts.

I underwent surgery which I found out later was unnecessary. Can I take legal action?

Possibly, if there was no legitimate medical need for the operation, or if your consent was procured by fraud, or if the surgical operation departed from standard medical practice.

The choice of treatment often is a "judgment call" and competent physicians can reasonably disagree on choices of treatment. The doctor using his or her professional judgment chooses surgery as the method of treatment, subject to your informed consent.

The critical question of liability, however, will focus on whether the operating surgeon was negligent and did not perform the operation in conformity with standard practice, not on whether other reputable professionals would have recommended other treatment.

Is misdiagnosis malpractice?

Not necessary. A lawyer can determine this for you.  Medicine is not an exact science; doctors are not required to be right every time they make a diagnosis. It is a fact that a misdiagnosis can be arrived at through standard tests, even when the tests are performed accurately or evaluated by a skilled doctor with the utmost care.

A misdiagnosis may be malpractice if the doctor fails to get a medical history, order the appropriate test for the illness, or recognize the symptoms of the illness. And yet, there is no basis for a malpractice claim if there is no injury, loss or damage as a result of the misdiagnosis and consequent treatment, on the theory that you are no worse off than you were before.

Any malpractice when a doctor prescribes experimental drugs?

If you were aware the drug was experimental, not FDA approved, were informed of its potential risks, and consented to its use, it probably would not be malpractice. Should the question of liability arise, the inquiry would focus on the doctor’s professional judgment in prescribing the drug.

But don't give up. It may be that the drug manufacturer would have some liability if it acted improperly, or falsified reports to gain approval to test an experimental drug.

You often read in the paper about a celebrity being addicted to painkillers prescribed by a physician. Is this not malpractice?

If the patient was not warned the medication was addictive, he or she could have an action since the patient’s treating doctor deviated from standard practice. On the other hand, if the patient was aware of the drug’s probable side effects, and the risks involved, there may not be a basis for a malpractice claim.