The 411 of Medical Malpractice

What is Medical Malpractice

Medical malpractice is when a person suffers an injury due to a hospital, doctor, or healthcare professional’s negligence. This negligence could come in the form of errors in diagnosis, treatment, aftercare, or health management.

For the injury to be considered medical malpractice, the patient must show the physician acted with negligence, causing the injury. The legal elements which must be proven are:

  • A professional duty was owed to the patient
  • There was a breach of such duty
  • An injury was caused because of this breach
  • There are damages resulting from such breach

In the United States, medical malpractice lawsuits are not obscure. According to an article released by Medscape in 2020, nearly half of family practitioners reported being in at least one medical malpractice lawsuit. The same survey revealed that in 42% of cases filed against family physicians, the reason for the malpractice lawsuit was due to a failure or delay in diagnosis.

History of Medical Malpractice

Code of Hammurabi statueThe earliest traceable example of medical malpractice code is the Code of Hammurabi, a set of 282 laws developed during the reign of Hammurabi 1792–1750 BCE. This code established rules and standards for commercial interactions with punishments or fines set, literally, in stone. 

The code was carved into a four-ton slab of diorite and stands at seven feet and five inches. At the top of the stone is a two-and-a-half-foot carving of King Hammurabi receiving the law from the Shamash, the Babylonian god of justice. The rest of the carving is dedicated to the code.

The code is written as an “if-then” statement, heavily focused on the concept of “an eye for an eye.” For example, if a man steals an ox, he must pay back 30 times its value. If a doctor killed a wealthy patient, his hands would be cut off. If he killed a slave, financial compensation was required by the doctor.

Following the Norman conquest in 1066, English common law was established. Crimes perceived as wrong had consequences, and victims were compensated accordingly. Within the Court of Common Law and the Plea Rolls are records showing consequences for medical malpractice, also known as “unwholesome medicine.”

Early medical malpractice cases

1164: Everad v Hopkins: a case where a master and his servant received damages due to a physician practicing “unwholesome medicine,” resulting in the servant being made more ill.

1374: Stratton v Swanlond: Agnes of Stratton and her husband sued John Swanlond, a surgeon, for failing to treat and cure her mangled hand. The case was dismissed because of a procedural error but served as a standards foundation for exercising due care regarding the patient’s treatment. 

1532: During the reign of Holy Roman Emperor Charles V, law passed stating the opinion of medical men must be formally given in the cases of violent death. This concept eventually led to the requirement of expert testimony from a member of the profession during medical negligence claims.

1768: The Commentaries on the Laws of England passed, giving terms such as “mala praxis” for professional negligence. Mala praxis referred to a breaking of trust with the physician and led to the patient’s destruction. Malpractice is believed to be derived from the term mala praxis.

Medical malpractice in the United States

Five years after George Washington became president, America witnessed its first medical malpractice case. In 1794, a man sued after a doctor claimed he could operate on his wife skillfully. When the woman died as a result, her husband pressed charges and won the case. 

Following this case, the 19th century saw an uptick in cases claiming medical malpractice, increasing dramatically after 1835. Not every case involved death; the majority focused on fractures and dislocations

The American Medical Association was created in 1847, which set standards for medical training and education and a code for ethical medical practice. This association is still operating as the largest organization of physicians and medical students in the United States and continues to spearhead and advocate for health measures.

Early in the 20th century, associations and companies began to offer medical malpractice insurance. The Massachusetts Medical Society, founded in 1908, was one of the originating groups providing such insurance. While insurance protected physicians, they also felt they were more targeted for having insurance.

During this century, reforms passed thanks to high-profile cases. Courts published standards for medical malpractice awards in 1970’s following an uptick in cases. After seeing the vast amount of money given in a short time frame, states passed reform laws capping the amount of money awarded, including informed consent.

In 1984, Libby Zion was admitted to a New York hospital and given medication that did not mix with her antidepressant. As a result, she suffered a 107-degree fever and cardiac arrest, succumbing to her condition and losing her life. Her father claimed the workers were overworked and negligent, resulting in his daughter’s death. From this case, a limit of hours medical staff could work ensued, reforming the profession on a national level.

Today, medical malpractice claims are far from uncommon. Most physicians will face a medical malpractice claim by the time they are 65 years old. Some professions, such as physicians in surgical specialties, have an 80% chance of encountering a claim by the time they are 45 years. According to a 2016 article by NPR, John Hopkins released a statement stating death due to medical errors should be the number three cause of Americans’ deaths. With information like that, it is crucial to understand what qualifies as medical malpractice.

Characteristics of Medical Malpractice

For a claim to qualify as medical malpractice, it must have particular characteristics.

  • A doctor-patient relationship
    In layman’s terms, the doctor must have been hired for care and actually treated the patient. As most patients go to a medical facility and bill insurance, this is not often a difficult task to prove. It is not enough to have overheard advice and experience an injury due to this advice
  • Violation of the standard of care
    With the development and acceptance of reasonable expectations for the standard of care a patient receives, the law acknowledges the patient has a right to expect and count on the delivery of such standards. When these standards are not met, negligence may be established.
  • Negligence caused the injury
    When a standard of care has been breached, negligence must also be proven. For negligence in terms of medical malpractice, each of the following must occur: duty, dereliction (departure from the standard of care), damages, direct cause.

    Essentially, if it was not for the negligence of the provider, the injury would not have happened. It is not enough to have sustained an injury. The injury must be due to negligence. This can often be difficult to prove in cases like cancer treatment. If the doctor provided treatment, the patient could still die from cancer, so it may be quite troublesome to prove negligence as the reason.
  • Significant damages occurred due to the injury
    Because of the incredible amount of time and costs associated with a medical malpractice case, the injury must have resulted in the patient’s loss of income, extensive past and future medical bills, disability, or unusual pain, suffering, and hardship.

Examples of Medical Malpractice

doctors examining results of test

The following is not meant to be a complete list; however, patients filed medical malpractice lawsuits in the following areas:

  • Medical mistakes
  • Misdiagnosis
  • Failure to diagnose
  • Failure to warn of possible risks of treatment
  • Failure to order testing
  • Symptom recognition failure
  • Disregarding or misreading lab results or diagnostic tests
  • Medication or anesthesia errors
  • Inappropriate medication or inaccurate dosage
  • Failure to collect patient history
  • Unnecessary surgery or surgical errors
  • Incorrect surgery or wrong-site surgery
  • Surgical errors
  • Emergency room errors
  • Unacceptable or insufficient level of aftercare 
  • Discharge from hospital too soon
  • Brain injuries or brain damage
  • Cerebral palsy

Specifics of Medical Malpractice Cases

Like most areas of the law, the innuendos of medical malpractice cases can vary from state to state.

Statute of limitations for medical malpractice lawsuits

This window differs depending on the state you live in, but most states require a medical malpractice lawsuit to be filed between six months and two years from the time of the injury or when the injury was first discovered.

Medical malpractice review panels

In some states, before moving forward with a lawsuit, it is required that a review panel examines the arguments, testimonies, and evidence. If they feel there was indeed negligence, the case can proceed. This panel does not judge the case nor give any compensation to the victims. It simply decides if the case can go to court. Sometimes courts use the findings of this panel to dismiss a case before it ever gets to court.

Notice of medical malpractice claim

Before ever filing a claim, some states require the patient to notify the doctor about the upcoming claim.

Expert testimony in medical malpractice lawsuits

In many cases, the review panels require expert testimony. Even if they do not, expert testimony is an essential part of a medical malpractice case. The few cases that do not need an expert are often riddled with an undeniable level of gross negligence, such as leaving an instrument inside a person after surgery.

An expert has specific information or is a specialist in a particular field. He or she helps the court decide what is considered a reasonable expectation of care. Without this individual, many cases are dismissed before entering the courtroom. 

The Medical Malpractice Process

The amount of time a medical malpractice case takes from start to finish depends on the complications of the case and if the case is settled outside of court. Settling outside of court will likely speed up the process but may be at the cost of a lower payout.


During the initial process of a medical malpractice lawsuit, all parties involved must be notified of the impending claim. Once this happens, the parties will request information, evidence, and documentation from each other to better understand the case. Both sides need experts to review and consult on the subject.

Expert medical witnesses

These individuals should be neutral parties and fall within the guidelines of state law. The witnesses examine the case and determine if there is enough evidence for negligence. State laws determine the degree of expert opinion these parties must possess.


If the case is determined to have negligence, attempts are made to settle outside of court. The defense will strive to minimize the damages to their client, likely the malpractice insurance provider. The plaintiff’s lawyer will work for a reasonable amount to settle. If they cannot agree, court is the next step.

About 90% of the medical malpractice claims are settled out of court. Because of the time, energy and cost, both sides prefer this option. Payouts from court cases average around 1 million dollars but are not guaranteed and are lengthy. Settlements usually average about $400,000. Some defense attorneys will hold out on offering an appropriate settlement until right before court, hoping the plaintiff will accept a lower amount. An experienced medical malpractice lawyer knows this horse and pony show and helps their client receive proper compensation.


Once a case has been settled or won, the injured party either takes a lump sum or structured payments. Structured payments are mostly given out with birth injuries or malpractice with young children. This option allows parents to time payments out over the child’s years. Other than for this reason, a lump sum is usually the best way to collect money as the process is completed and no further contact is necessary.

Attorney fees

Most medical malpractice lawyers charge their clients on a contingency basis, meaning they get paid if their client wins the case. The amount of that payment is per the agreement made at the start, usually amounting to recovering costs of the prosecution plus a percentage of the awarded money. Preparation and prosecution can easily cost $100,000 in fees alone.

Medical Malpractice Lawyers

Medical malpractice cases are not areas for you to battle alone. The research and background information necessary is extensive, and experience in dancing with settlement offers and expert testimonies is critical. 

The Hayes Firm has demonstrated its ability to match those injured with lawyers suited to handle their case. From Missouri to Tennessee, we have helped individuals in various states receive the compensation justified due to medical malpractice. 

You deserved the proper standard of care when you trusted your doctor. While we cannot undo the damage done, let us help you pursue justice owed to you. Contact The Hayes Firm today.

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