Asker: Can I sue a medical professional for malpractice? What about suing a doctor for withholding information that caused a delay in treatment?
Attorney: Medical malpractice is a common focus of questions from clients and prospective clients. “Med mal” claims are notoriously complicated, even for those of us in the legal industry – and these cases are extremely confusing for people with no legal background. Most people don’t understand what constitutes medical malpractice or who they can sue and under what circumstances – just as they may not know about obstacles to their claims until it’s too late.
Understanding Medical Malpractice
What is medical malpractice? It’s not as simple as an unfavorable outcome. Medical malpractice can be committing an act of recklessness, like performing surgery on the wrong patient or the wrong body part, but it can also mean a failure to perform an expected action, like delaying a necessary procedure or missing what should be a clear diagnosis. The simplest definition of what constitutes medical malpractice is behavior that falls below an accepted standard of care. The standard of care means the standards that other members of the medical community would expect given the circumstances.
Let’s talk about what that phrase “standard of care” means. Different doctors may not always make the same diagnostic or treatment decisions. They may choose one medication, procedure, or test over another. It’s when a doctor who chooses to act in a way that is out of line with the practices considered acceptable by the larger community that the behavior is malpractice.
Obviously, when a doctor operates on the wrong patient or the wrong body part, there is negligence in the medical professional’s failure to check patient records. Other instances of malpractice are more subtle, and patients and their families may unfortunately never realize that they have the right to pursue a claim. For example, when a patient is diagnosed with cancer, doctors may choose from several treatment options, like radiation, chemotherapy, and surgery. Depending on the circumstances, all of these options might be within the acceptable standard of care. What’s not acceptable is neglecting to ever tell the patient that cancer exists, allowing the disease to become more severe and less treatable over time.
Some of the medical malpractice issues that people most commonly ask about include:
- A medical professional acting carelessly and causing you harm. For example, say a surgeon left a surgical instrument inside your body during a surgery. If this circumstance further damaged your health, you might have a med mal claim.
- A doctor delaying a diagnosis or procedure to your detriment. This can range from obstetricians who delay necessary C-sections, leading to birth defects, to medical professionals who fail to diagnose cancer in patients and delay potentially life-saving treatments. It may take getting a second opinion or, unfortunately, the development of a more serious health problem to determine that the doctor’s actions actually caused harm.
- Over-prescription of potentially dangerous medications, like opioid painkillers. When doctors are careless with prescribing these drugs, addictions and fatal overdoses can happen through no fault of the patient.
Medical malpractice comes in many forms, so even if your situation isn’t on this list, it’s still worth consulting an attorney to see if you have a case.
Who You Can Sue
Naturally, people associate medical malpractice with doctors, but any medical professional who fails to provide patients with the accepted standard of care can be sued for medical malpractice. Nurses, chiropractors, and medical specialists can all be responsible for negligence that causes harm to a patient.
Reasons Why You Might Not Be Able to Sue
The biggest reasons why you might not be able to sue a doctor for medical malpractice include:
- Timing: In civil claims, there’s a deadline, called the statute of limitations, that determines how much time you have to file a lawsuit before your right to pursue compensation effectively disappears. Usually that statute is two years from the date of the incident, but the time may be longer for minors (two years from the date they turn 18) or if time passed before it became apparent that medical malpractice was a factor (called the discovery rule, this means the deadline is two years from the date the patient knew or should have known malpractice occurred). Your time is limited, so don’t wait!
- Damages and expense: Pursuing a med mal claim is incredibly expensive. Lawyers need to secure on your behalf expert witnesses– medical professionals who can testify that the care you received fell below the standard of reasonable, acceptable care for the circumstances. Because it costs so much money to pursue these claims, it will only be worthwhile to you if the damages and potential for financial recovery are substantial. If you’re not sure if your damages are worth pursuing a claim, you can always take advantage of a free consultation with a law firm.
- Trying to do it alone: Med mal claims are complex and technical. They are among the more difficult and expensive to pursue claims even for attorneys who specialize in medical malpractice claims. For people without a legal background, winning such a claim alone is pretty much impossible. You’re not going to get the money you deserve, and you would have to sink a lot of money into pursuing the claim to begin with. If you take just one insight from this answer, it’s this: don’t try to handle a med mal claim on your own. You need a lawyer.