When a medical professional such as a doctor causes harm to a patient, either through an act of negligence or one of omission, this is medical malpractice. Negligence can include errors in diagnosis as well as treatment or management. Medical malpractice cases can be pursued against a doctor whose actions are not within the range of accepted practices, against a hospital which fails to properly provide medication or other personal or medical care, or against government agencies which administer medical facilities.
Medical malpractice laws are meant to protect patients. They are often difficult and expensive. The law protects patients by allowing them to pursue financial damages, but the complexity of these suits mean that lawsuits for minor injuries are not a realistic option. If you have a medical malpractice claim, you should consult with an experienced attorney to explore your options.
There are several legal doctrines and theories that govern liability in medical malpractice cases. Most of these cases assert that a patient's care was negligent. The plaintiff in a negligence case must prove that the responsible medical professional owed the plaintiff a duty for responsible care, that the professional's actions did not meet the appropriate standard of care, that the patient was injured, and that the injury was caused by the medical professional's failure to provide adequate care.
Establishing the proper standard of care is often the most critical aspect of a malpractice case. A mistake is not necessarily a lapse in professional conduct. Plaintiffs must acquire expert testimony in order to establish appropriate care and determine whether that care was not provided, unless the nature of the negligence is apparent to a layperson. Expert testimony can also be required to show causation. If the plaintiff is not sure what caused the injury but it is obvious that it was caused by medical malpractice, it is possible to sue under a legal doctrine called res ipsa loquitur ("the thing speaks for itself"). The jury can find the defendant responsible if they can infer that responsibility for the injury.
Doctors and other health care professionals can be held liable for prescribing medications or devices if the prescription is incorrect or the instructions are ignored, and this results in injury to the patient. If a drug causes a reaction or side effect and the manufacturer fails to warn medical professionals of the possibility of danger, the manufacturer can be held liable for negligence. Generally, the prescribing physician has the primary duty to determine whether a prescription is right for any individual patient and to advise the patient of potential dangers and side effects.
Doctors must generally get permission from patients to perform any non-emergency medical procedure. Failure to obtain this permission, or "informed consent", can result in liability for negligence and even criminal liability for battery. Informed consent laws differ between states, but generally require medical professionals to give patients all information involved in a medical or surgical treatment, including potential hazards and alternatives as well as benefits. The physician or other health care provider should obtain the written consent of a patient before beginning a treatment or procedure.
It is rare for health care providers to guarantee results from a treatment, but this does occur. If a procedure or treatment does not produce results as promised, this can leave the health care provider open to a breach of contract or breach of warranty lawsuit. An example might be a plastic surgery which fails to produce an easily-judged result. Dissatisfied patients who have received a warranty or guarantee may sue to recover damages for breach of contract.