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What is Medical Malpractice?

Medical malpractice is commonly defined as when a medical professional does not provide medical care that adheres with the medical standard. 

Medical malpractice occurs when a patient is harmed because a doctor or other medical professional failed to competently perform their medical duties. While some state’s rules on medical malpractice may vary slightly, overall there are broad categories of rules that apply to most medical malpractice cases. 

Basic Requirements for a Medical Malpractice Claim:

To prove medical malpractice occurred, there are four main elements you must prove. These are proving: a doctor patient relationship, that the doctor was negligent, that negligence caused the injury, and that the injury led to specific damages. To sue for malpractice, you must show that the doctor caused your harm in a way that under the same circumstances, a competent doctor would not have caused that specific harm. The 4 D’s that make up these elements are: duty, dereliction, direct cause and damages. Once these elements are met, the patient likely has a medical malpractice claim and can begin preparing their court action.

Not all cases necessarily qualify for a medical malpractice claim. Just because a patient may have been injured while under the care of their doctor does not necessarily entitle them to a medical malpractice claim. All medical treatments have the potential to go wrong. Doctors are not legally liable for undesirable outcomes, but they are when they fail to perform their legal duties. In the same vein, health care providers are not expected to do everything perfectly, but are expected to perform competently, using legitimate skill and care. 

Doctor-Patient Relationship

The first element means you must prove that you had a doctor-patient relationship with the doctor you are suing. This must be a consensual relationship on both sides of the bargain, where you hired the doctor and the doctor agreed to provide you a service. You cannot sue a doctor who you heard advice from on the internet or social media for example because you did not hire them, they have not agreed to take you as their patient and you do not in fact have a doctor-patient relationship. It can prove difficult to prove a doctor-patient relationship even if you have one. Even if you did hire a doctor, and had a doctor-patient relationship, where they did not treat you directly, the relationship can become foggy. It is much easier to prove a doctor-patient relationship where you were actually being seen and treated by a medical professional. When there is a doctor-patient relationship there is a duty of reasonable care on the part of the medical professional. 

The Doctor was Negligent

To determine negligence, this must be more than the fact that you are unhappy with the treatment you received. The doctor must have had to have been specifically negligent in connection with your diagnosis or procedure performed. The doctor’s care is not required to be the “best possible” necessarily, but must be “reasonably skillful and careful.” Therefore, whether the doctor was reasonably skilled and careful, therefore competent, in the course of the medical treatment makes or breaks this element of the claim. This dereliction, or deviation from the standard of care is a key element of the medical malpractice case. 

The Doctor’s Negligence Caused Injury

Even if you prove that the doctor was negligent in the course of the medical treatment, and that there was a doctor-patient relationship, you must prove that the doctor caused the injury. This can get foggy because many medical malpractice cases involve patients that were already injured or ill.  To prove the doctor’s negligence caused the injury, the standard is that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Where the doctor’s negligence is the direct cause of the injury, this element is met. 

The Injury Led to Specific Damages

Even if the doctor was negligent and caused injury, there is no case unless the patient suffered harm. Therefore, this is the ultimate factor in proving your medical malpractice claim. There are specific types of harm a patient can sue for. These include mental anguish, physical pain, additional medical bills, lost work and lost earning capacity. Damage is the final element that needs to be determined. 

Common Types of Medical Malpractice:

Medical malpractice can take place at any point within the course of a medical provider treating a patient. From the initial diagnosis, to the treatment itself, there are a number of times within the course of treatment where malpractice can occur. Negligence that rises to the level of medical malpractice can occur in many different scenarios. These could be anything from failure to diagnose a harmful condition of a patient, failure to advise a patient of serious risks, and unacceptable errors during the performance during surgery or another procedure. 

Most medical malpractice cases fall into 3 main categories. These are: failure to diagnose, failure to warn a patient of known risks, and improper treatment. 

Misdiagnosis and Failure to Diagnose

Sometimes a doctor fails to recognize and diagnose a condition that a competent doctor would have spotted. This error may contribute to a condition progressing resulting in more treatments, pain and suffering. Even from the initial office visit, if a competent doctor would have discovered a patient’s illness or made a different diagnosis which in turn would have led to a better outcome for the patient than the current one, then that patient may have a viable medical malpractice claim. A plaintiff bringing this type of claim would need to introduce expert testimony from a doctor who can explain why a competent doctor would have correctly diagnosed the condition or diagnosed it sooner. 

Failure to Warn a Patient of Known Risks

Doctors have a duty to warn patients of known risks of a procedure or treatment. This is also known as the duty of informed consent. Therefore, if the doctor does not warn a patient of potential risks of a certain procedure, and that patient would have elected not to go through with it had they known, the doctor is then liable for medical malpractice if the patient is injured in the procedure. The injury counts as long as the patient is injured in a way that the doctor should have warned could happen. This is also known as a foreseeable injury.

Improper Treatment

This claim can be valid where a doctor utilizes a treatment for the patient in a way that no other competent doctor would. There could also be medical malpractice in this type where the doctor chose the appropriate treatment yet administered the treatment incompetently. With this type of medical malpractice, this could include surgical errors, anesthesia errors, child birth errors and even prescription errors.

Prescription drug errors mainly occur when a patient is given the wrong medication, wrong dosage or not made aware of certain side effects of medication. Many different medical professionals including doctors, pharmacists and drug manufacturers could all be held responsible for prescription mistakes. While the doctor will likely be liable if a mistake happens during the prescription process, a nurse or hospital could be liable for a mistake made during administration. The hospital equipment could even be defective and subsequently administer an improper dose. 

Child birth errors occur when there is negligence during childbirth which in turn leads to harm of the mother, baby or both. Almost twenty percent of medical malpractice cases are filed against OBGYN’s. This is more lawsuits than are filed against any other medical provider. Negligence on the doctor’s part during childbirth could lead to certain complications such as fatal distress, spinal cord injuries and postpartum hemorrhage.  Sometimes inadequate treatment or care prior to childbirth can cause harm to the mother and child, and other times injuries may occur during the actual birth process. 

Surgical errors are also a common type of medical malpractice. The errors could include certain complications such as wrong incision site, incorrect surgery site or even leaving a foreign object like a sponge inside the body. While many surgical errors may be the result of a surgeon’s error, most are the result of poor planning before the surgery or factors that occur after the surgery. Some types of surgical errors are known as “never events” meaning the medical profession acknowledges that certain errors should never occur. These would be an obvious surgical error. A doctor may also operate on either the wrong patient altogether or wrong body part during a procedure. Complications and infections following a surgery may also cause significant harm and could be a surgical error.

Errors with anesthesia can trigger medical malpractice cases as well. Mistakes made by an anesthesiologist can cause anything from a brain injury to death of a patient. A number of things could go wrong during the course of treatment. If the anesthesiologist does not focus enough attention to a patient’s medical history or gives too much anesthesia, consequences can be deadly. A medical provider may fail to provide the patient with proper instruction before a procedure, fail to monitor the patient’s vital signs while administering the anesthesia, or use defective equipment during the procedure. There can also be malpractice during sedation for dental procedures or certain outpatient operations.

Your Next Steps:

Because there are special rules and procedures for medical malpractice claims, many of which vary from state to state it is important to know and follow these rules carefully. The rules are complex and detailed so paying close mind to these rules would be prudent in creating your lawsuit. 

Time Deadlines

In most states you must bring a claim for medical malpractice between 6 months to 2 years either when the incident occurs or when it is discovered. This statute of limitations means if you do not file you case within this period of time, the court will dismiss your case, even if you met the elements of medical malpractice. When the time period begins to start counting depends on the state. In some states, the clock starts ticking when the negligent act occurred, while in other states, it begins when the patient discovers the injury. 

Review Panels

Some states require the patient to submit their claim to a review panel before the next step of moving the lawsuit to the courtroom. The review panels are made up of experts who firstly review evidence and testimony and then decide whether malpractice occurred. While this decision is not binding like a lawsuit’s final judgment, and also awards no damages, the findings can be presented at trial as evidence. Courts also rely on the findings of these courts to determine if the case is ready for the courtroom.


Some states may require that you give your doctor notice that you are filing a medical malpractice claim against them. The rule may also require you to explain what the case is regarding as to what specific medical incident.  

Expert Testimony

Almost every state requires that the patient to provide a medical expert to testify to the court the medical standard of care in each case, and explain how the doctor deviated from this standard of care.

Damage Limitations

Many states have caps for damages in medical malpractice actions.


Because medical malpractice law is so complex and highly regulated, and varies so much between states, getting advice from an experienced attorney can make or break your case. 

At the Cochran Firm, the leadership of our Medical Malpractice Section and many of its section members are Board Certified in Medical Malpractice.  All of our medical malpractice attorneys have the experience and expertise to help you screen and prosecute your medical malpractice case. And we often bring a team of experienced medical malpractice attorneys from several different office locations to handle our cases at no additional charge to our clients.

Our case review gives our potential clients a free resource to have our medical experts and experienced medical malpractice attorneys review your claim to determine if medical malpractice occurred.

The Cochran Firm has the resources to access and hire top medical experts in any field of medicine to help prove your case.  Many of our offices have in-house nurses and physicians that help us research difficult medical issues and provide screening in complicated cases.  Let our experienced medical malpractice team review your case today.  As with all of our reviews, it costs you nothing.  And if we take your case, we do not charge a fee unless a recovery is obtained on your behalf.

Our results with medical malpractice cases speak for themselves.  Our attorneys have procured hundreds of millions of dollars on behalf of the injured patients we have represented.

If you’ve suffered a devastating personal injury as a result of a medical professional’s error, you should speak to our medical malpractice attorneys immediately. Please contact The Cochran Firm today for a free consultation.



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