Do I Have a Medical Malpractice Case?

Medicine has risks, and not every bad result means someone did something wrong. Medical malpractice is a specific legal claim, and it's one of the hardest and most expensive kinds of case to bring.

The four elements

To win, you generally must prove:

1. Duty: a doctor-patient (or provider-patient) relationship existed.
2. Breach: the provider fell below the standard of care, meaning what a reasonably careful provider in the same field would have done in the same situation.
3. Causation: that failure actually caused your injury, not your underlying illness.
4. Damages: you suffered real harm, such as additional medical costs, lost income, pain or disability.

Causation is often the hardest. A defense lawyer will argue the outcome would have been the same with perfect care.

Common types

• Misdiagnosis or delayed diagnosis, especially cancer, heart attack, stroke and infections.
• Surgical errors, including wrong-site surgery and objects left inside a patient.
• Medication errors, wrong drug or wrong dose.
• Birth injuries.
• Failure to obtain informed consent about significant risks.
• Anesthesia errors.
• Nursing and hospital system failures.

Special rules in many states

• Expert support up front. Many states require a certificate or affidavit of merit from a qualified medical expert before or shortly after filing.
• Short deadlines, sometimes with a discovery rule and an outer limit (a "statute of repose"). See the personal injury statute of limitations.
• Damage caps, particularly on non-economic damages, in some states.
• Pre-suit notice or review panels in some states.

Why these cases need a specialist

Malpractice cases require expert witnesses, extensive record review and often years of litigation. Costs can be substantial, so experienced malpractice lawyers screen cases carefully and take only those with strong liability and significant damages. If one lawyer declines, it's often because the damages can't justify the cost, not because nothing went wrong.

What to do now

1. Request your complete medical records. You have a legal right to them.
2. Write a timeline of symptoms, appointments and what you were told.
3. Get the care you need, possibly from a different provider.
4. Talk to a lawyer promptly because of the deadlines.

Find a medical malpractice lawyer near you. Related: how contingency fees work.

This guide is general information, not legal or medical advice. Malpractice law varies by state.