Is Medical Malpractice a Tort?

Every year, approximately 15,000-19,000 lawsuits are filed in the U.S. claiming medical malpractice or negligence. The Washington Post ran an article claiming that medical errors could be the third-leading cause of death in the United States, with as many as 251,000 victims a year. When we go to a doctor, we expect them to help us, and in some cases, we're literally putting our lives in their hands. We all know that medical professionals go through long years of rigorous training to enter the profession, but what happens when they make a terrible mistake?

A medical malpractice lawsuit can be filed against any licensed health care provider such as:

• Doctors
• Nurses
• Physical therapists
• Dentists
• Dental hygienists
• Pharmacists
• Pharmacy technicians
• Physician assistants
• Psychiatrists

The following elements must be established when proving medical malpractice: 1) A doctor-patient relationship existed. 2) The medical professional failed in their duty to exercise the degree of care expected of a reasonable medical professional. 3) This failure caused your injury. 4) Your injury led to specific damages. 

Medical professional-patient relationship - You need to show there was an established professional relationship. There is usually enough proof when a doctor or nurse sees you at their office. There will be documentation in the form of copays, emails, appointment reminders, and payments. You can't sue a doctor you met at a friend's house who gave you dismissive advice on a mole that later turns out to be skin cancer. You have to have a professional relationship.

The medical professional was negligent - Feeling unhappy with your medical professional's services doesn't constitute medical malpractice. They must have treated you with negligence as concerns your treatment or diagnosis. When suing for medical malpractice, you need to prove negligence caused your injury in a way that a reasonably competent medical professional, under the same circumstances, would not have. It is not medical malpractice to fail to provide the very best care, but rather the medical professional should provide care that is reasonably skillful and careful.

The medical professional's negligence caused your injury -  Malpractice lawsuits tend to come from patients that are already sick, which is why they are seeking treatment in the first place. Because of this, you can run into issues proving that negligence made them sicker or caused their death. It must be proven that it's more likely than not that the medical professional's negligence is directly related to the injury. Under these circumstances, it often requires a medical expert to testify that the injuries were the medical professional's fault.

The injury led to compensable damages -  As stated before, just because a medical professional didn't perform their best, that doesn't mean they are guilty of medical malpractice. Their actions or inactions must lead to specific damages like additional medical bills, physical pain, lost work or loss of future income, or mental anguish.

Usually, in a medical malpractice case, the primary focus will be on what the medical professional should have done under your circumstances. The standard of care under which medical professionals are judged is called the "medical standard of care." Usually, to prove this kind of negligence, it takes the expert testimony of an equally qualified medical professional to show the defendant deviated from these standards. 

Medical malpractice can take many forms, from an incorrect diagnosis to prescribing dangerous drugs without informing patients of side effects. However, most claims fall under the following common types of medical malpractice:

Failure to diagnose- You may have a valid medical malpractice claim if a reasonably competent doctor could have diagnosed your illness earlier or differently, which would have led to a more favorable outcome. For example, suppose a woman goes to a doctor complaining of pelvic pain, but the doctor dismisses it as being in her mind. Later, it was found she had an ectopic pregnancy and suffered life-threatening blood loss. In this case, that doctor could be found liable for medical malpractice.

Improper treatment -  If a medical professional treats a patient in a way that no other reasonably competent physician would, that could be considered medical malpractice. Likewise, suppose the medical professional recommends the proper treatment but fails in its execution. In that case, that could also be regarded as medical malpractice. For example, if a patient complains of increasingly severe headaches, but the doctor prescribes pain medication instead of ordering imaging tests. Later, the patient is found to have a brain tumor. The patient may have a case for medical malpractice.

Failure to warn of known risks from procedures or medication - Medical professionals have a duty to warn patients of known risks associated with procedures and medications. This is known as the duty of informed consent. Suppose a doctor recommends a treatment that ends up causing injury, and the patient wasn't informed of the possibility of other forms of injury. In that case, the patient may have grounds for a medical malpractice claim. Here is an example scenario. Suppose you have decided on elective nose surgery. Still, the doctor didn't warn you that you could have difficulty breathing through your nose afterward, and now you have a hard time breathing. In this case, you may have a cause to bring forth a claim against the plastic surgeon.

The statute of limitations varies depending on which state you live in. Some states require a claim to be filed as short as six months after the injury. Others give you up to two years. It's critical to note here that should you fail to file within your state's statute of limitations for medical malpractice, you have virtually no chance of it being accepted by the court.

Furthermore, some states start the time clock when the injury occurred; others start the time clock when the injury is discovered. That's why it's crucial to contact one of our medical malpractice attorneys as quickly as possible.

State required medical malpractice review panels

In many states, you will be required to present the claim to a malpractice review panel before pursuing a lawsuit. These review panels will review the evidence and hear arguments before agreeing that medical malpractice occurred. Although they cannot award damages and don't replace a lawsuit, many courts will follow the review panel's findings when deciding whether a lawsuit can move forward. The following states require alternative dispute resolutions to be tried before filing a medical malpractice lawsuit:

• Alaska
• Delaware
• Hawaii
• Idaho
• Indiana
• Kansas
• Louisiana
• Maine
• Massachusetts
• Montana
• Nebraska
• New Hampshire
• New Mexico
• Utah
• Virginia
• Wyoming

There are three forms of damages you may be awarded in a medical malpractice lawsuit: economic, noneconomic, and punitive damages. 

Economic damages - Also known as special damages, this form of compensation reimburses victims for expenses incurred by medical malpractice, such as medical costs or therapies required by the injuries. It also covers things like loss of income for time off work. Additionally, it's possible to recover money for future needed treatment. Future treatment costs may require the help of an expert witness to determine what these costs will be, but fortunately, our medical malpractice lawyers have access to these kinds of necessary resources.

Noneconomic damages - Also known as general damages, this typically refers to compensation for pain and suffering and loss of enjoyment of life. Because these are things that are hard to quantify, it often requires documentation and testimony from the victim and friends and family to demonstrate how much the injury has impacted the patient's quality of life.

Punitive damages - This form of compensation is not typical, and it's awarded as a form of punishment for the wrongdoer. For example, we've heard of medical professionals giving patients a placebo dose of the Covid vaccine instead of the actual vaccine. If one of their victims caught a severe case of Covid because of this deception, that patient might be awarded punitive damages because the medical professional's actions were intentional and reckless.

Yes, currently, 35 U.S. states have a cap on the amount of compensation a plaintiff can receive after a successful medical malpractice lawsuit. Some states put a cap on damages even if medical malpractice causes a long-term disability or a wrongful death. However, most of the states have adopted caps for noneconomic damages like pain and suffering, not economic damages like ongoing medical care.

When questioning, "is medical malpractice a tort," you may already have your sights set on pursuing a medical malpractice lawsuit. If you or someone you love was injured by the negligent or reckless actions of a medical professional, you have rights, and we can help protect them. Our lawyers are prepared to gather evidence, work with medical experts, negotiate with the insurance companies, and prepare your case for trial. 

When a doctor, nurse, or healthcare professional fails in their duty to care, we will help you hold them accountable and get you the compensation you deserve. Our lawyers have years of specialized experience in medical malpractice. They know the laws of your state and how to navigate the court process. Don't trust this issue to a smaller firm that may not have the resources or time to give your claim the attention required to bring you a successful result. We've recovered billions for clients all over the U.S., and that kind of success doesn't come about unless we're doing something right.

You don't have to worry about any additional financial burden either. Our attorneys work on a contingency fee basis which means you don't pay unless we win. Contact us today for a free case evaluation and give us a chance to show you why Morgan & Morgan lawyers are different.