Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did – the treatment of the preexisting condition – actually caused the harm. If a patient dies of pancreatic cancer after seeking medical treatment, it might be difficult to prove that the doctor caused the patient’s death and not the cancer. The patient must show that it is “more likely than not“ that the doctor’s incompetence directly caused the injury. This often requires that a patient have a medical expert testify that the doctor’s negligence caused the injury.
In 2013, BMJ Open performed a study in which they found that "failure to diagnose" accounted for the largest portion of medical malpractice claims brought against health professionals. Furthermore, the study found that the most common result of this negligence was death of the patient.[9] The other most common categories of malpractice include negligent treatment and failure to warn.

Suing the Government under the FTCA is different than suing a private company or individual.  There are a number of hoops that you have to jump through before you can even file the lawsuit. There are also certain limitations in lawsuits against the Government that you don’t have in lawsuits against private parties.  While you are entitled to a trial under the FTCA, it is a “bench trial,” meaning the judge renders the decision and not a jury.  Fortunately for the victims in the above-referenced malpractice case, the judge recognized the serious and permanent nature of the child’s injuries and the extraordinary expenses that would be required to provide for the child’s future medical and life care needs.


And don’t kid yourself. If you think that your doctor just made a mistake and that it won’t happen again – think again. Chances are, if he made a mistake with you, he very well could have done it before and will do it again. Don’t be dissuaded by your doctor’s apologies or his downplaying of your injuries. An apology won’t pay for your medical expenses, and it certainly doesn’t ensure that he realizes the full consequences of his negligible actions.
There was a violation of the standard of professional conduct - The law acknowledges that there are certain legal standards that are recognized by the profession as being acceptable conduct. These standards of professional conduct are largely determined by the ethics rules of the state bar association. Attorneys have an obligation to their clients and the bar to operate within these standards. Clients have the right to expect attorneys will follow the law, behave in an ethical and honest manner, act in the best interests of their clients with integrity, diligence and good faith, and will execute their matters at a level of competency that protects their legal rights. Lawyers must also maintain and supply clients with full and detailed reports of all money and/or property handled for them. Finally, attorneys must not inflict damage on third parties through frivolous litigation or malicious prosecution. If it is determined that the standards of professional conduct have been violated, then negligence may be established.
So, the best thing you can do if you think you have a good case against a hospital is to be a good client. Before you meet with a lawyer, make sure you know as much of the story as possible. How was your life before the medical negligence occurred? How was it after? Do you have any medical records from the hospital where you were harmed? You may not be asked for them at the initial meeting, but keep in mind that the lawyer may need your medical records to determine if there is medical negligence and if so, if suing the hospital would likely result in a trial verdict or settlement.
I also told the truth about my lie because I have been helping some of these plaintiffs’ lawyers with their cases. It seems that the courtroom is not the arena for adjudication of medical right or wrong. I shared my story to give an explicit example of why you can’t always rely on physician testimony in court. I think that’s the big reason. There’s got to be a different way to help people who have been medically harmed. Looking to the legal system is like mixing oil and water.
Your attorney should also disclose “bad facts” in the opening statement.[20] A bad fact is anything the defense would want to bring to the jury’s attention because it makes the defense case much stronger. For example, your failure to follow your doctor’s prescribed treatment is a bad fact. By disclosing bad facts first, your attorney can take the sting out of them.

Navy Medical Malpractice Birth Injury $2,322,359 received by clients with lifetime benefits $600,000 attorneys' fees $77,641 litigation expenses Carman v. United States Portsmouth Naval Medical Center During labor and delivery, Navy providers failed to timely respond to our client's placental abruption causing permanent and severe brain damage to her baby.
Navy Medical Malpractice Birth Injury $2,322,359 received by clients with lifetime benefits $600,000 attorneys' fees $77,641 litigation expenses Carman v. United States Portsmouth Naval Medical Center During labor and delivery, Navy providers failed to timely respond to our client's placental abruption causing permanent and severe brain damage to her baby.
Although it is not unheard of for a doctor to alter medical records, it is extremely rare. If your doctor does alter your medical records, this fact alone will not irreparably harm your case. There have been major advances in forensic technology over the past years. It is now possible to detect changes in ink, spacing, and handwriting that may have been made by your doctor when he tried to alter your records.
For example, John Smith went to his local doctor because he had a black spot on his foot and his leg was painful.  His doctor sent him to a surgeon who suggested a special procedure using a needle inserted into his leg artery to see whether the veins in John’s foot were blocked.  The surgeon botched the procedure and John’s artery was damaged.  Several weeks later John’s leg had to be amputated.  When John consulted a lawyer and the lawyer investigated his claim, the lawyer found that John’s original foot condition was gangrene and he was always going to have to have his leg amputated, so the surgeon’s negligence in performing the procedure did not leave John worse off than he would otherwise have been and he fails the test of causation.
A patient who did not have his or her wounds dressed or treated properly and later develops an infection may decide to sue. If an anesthesiologist or other employee gives the patient a drug that he or she should have known would cause issues, the patient may pursue a medical malpractice claim. A common cause for a medical malpractice claim is when the patient was misdiagnosed or had a delayed diagnosis due to a mistake.
Regarding Moviedoc's comment, "Treating a rape victim must you tell them you were raped by your brother when you were 10?"...This is probably a bit too much information. However, telling a rape victim that you (the treating therapist or Psychiatrist) are a survivor of rape is often very helpful! Rape victims often think that no one understands, and that they can not survive. Having someone right in front of them who has experienced the same thing and survived it, is therapeutic. It should never be confabulated though, either true, or not said.
The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not the broad waivers of sovereign immunity they might appear to be, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. § 1331 confers federal question jurisdiction on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.

*AV Preeminent and BV Distinguished are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies. Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the confidential opinions of members of the Bar and the judiciary. Martindale-Hubbell ratings fall into two categories ─ legal ability and general ethical standards.


The negligence resulted in significant damages - Legal malpractice lawsuits are expensive to litigate. For a case to be viable, the plaintiff must show significant damages that resulted from the negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To be worth pursuing, the plaintiff must show that the outcome resulted in losses far in excess of the amount of legal fees and expenses necessary to bring the action.
When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).
Special medical malpractice review panels. Many states require the patient to first submit the claim to a malpractice review panel. This panel of experts will hear arguments, review evidence and expert testimony, and then decide whether malpractice has occurred. The panel decision does not replace an actual medical malpractice lawsuit, and the panel cannot award damages, but it's a hoop the patient must jump through before getting to court. The findings of the review panel can be presented in court, and courts often rely on a review panel's finding of no medical malpractice to throw out a case before it goes to trial.

If you have been injured by someone acting on behalf of the Federal Government, you may be able to sue the Government under the FTCA.    Because suing the United States Government under the FTCA is trickier than suing a private entity or private citizen, you should retain an attorney who is experienced in handling these complex cases.  The FTCA attorneys at Suthers Law Firm have successfully represented individuals in medical malpractice and personal injury cases against the Government, and have the requisite experience and resources to take on the Government.  If you or a loved one has been injured at the hands of the Government, contact Suthers Law Firm for a free consultation.

Navy Medical Malpractice Birth Injury $2,216,740.36 received by clients with lifetime benefits $560,000.00 attorneys' fees $23,259.64 litigation expenses Calcagno v. United States Naval Medical Center Portsmouth (NMCP) Misdiagnosis of a marginal ulcer leading to fetal distress. Mother required emergency laparotomy with cesarean section, and baby had significant developmental and neurological

Once a doctor initiates treatment of a patient, the doctor must not only terminate care at a proper time, but also in a proper manner. If a doctor transfers a patient to the care of a second doctor, the second doctor may not be familiar with crucial details of a patient's care. So, the first doctor has an ongoing obligation to provide the second doctor with proper instructions and all relevant records (treatment notes, test results, etc.). Failure to do so could rise to the level of medical malpractice.


When your doctor or other healthcare provider fails to provide to you the proper, acceptable standard of care or treatment, he or she has committed medical malpractice. The treatment can fall below the acceptable standard of care because of their mistakes, ignorance, negligence, lack of skill, misdiagnosis or other errors. The law holds doctors, nurses, and other medical professionals responsible for providing care at acceptable standards. When they deviate from those standards, they may be held accountable for medical malpractice. These claims are often quite complex, and the services of a hired medical professional are necessary in order to prevail. Michaels & Smolak uses the most qualified medical professionals, including medical doctors, to support their clients’ medical malpractice claims. If you want to find out more, contact us for a free consultation.

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The medical community, however, continued to fight for widespread tort reform among the states, and at the national level. They cited insurance increases in the late 1990s and early 2000s, which put further pressure on doctors' and hospitals' earnings—earnings that had been shrinking under Managed Care. Some areas of medicine were particularly hard hit. In New York and Florida, for example, obstetricians, gynecologists, and surgeons—the doctors who are sued the most frequently—pay more than $100,000 a year for $1 million in coverage.

Certain types of serious hospital errors are totally preventable and should never occur, hence the name. Examples of never events include operating on the wrong body part, performing the wrong procedure on a patient, leaving a surgical tool in a patient or allowing a patient to develop pressure ulcers. Medicare has adopted a policy of refusing to pay for treatment that involves never events to put pressure of hospitals to do more to improve patient safety.
Medical malpractice claims don't only cover errors in diagnosis and treatment. Once you've established a doctor-patient relationship, the doctor owes you a duty of care and treatment with the degree of skill, care, and diligence as possessed by, or expected of, a reasonably competent physician under the same or similar circumstances. Part of that duty of care is to be forthcoming with your diagnosis, treatment options and prognosis, as reasonably competent physicians would not lie to their patients.
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