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Medical Malpractice

How Do You Win a Medical Negligence Case?

You might suffer no adverse consequences when a healthcare provider commits an error. A doctor might even correct a mistake early enough that you never know it happened.

But many victims of medical errors suffer injuries or death. These injuries can range from cuts and bruises from rough handling by nursing assistants to a long and painful battle with a fatal disease after an incorrect diagnosis.

Understanding medical negligence and what you need to prove to win a medical negligence case can benefit you and your loved ones. Contact a medical malpractice attorney today to receive your consultation.

Medical Errors and Medical Malpractice

Not every medical error amounts to medical malpractice. Medical malpractice is a form of professional negligence. Negligence happens when someone breaches a duty of care and causes an injury or death.

The difference between medical malpractice and ordinary negligence is the nature of the breach of duty. In medical malpractice, a healthcare provider breaches the professional standard of medical care. This means that the healthcare provider committed an error or omission that a reasonable healthcare provider would not commit.

Medical Error Statistics

No one truly knows how often medical malpractice happens. On the high end, a study by Johns Hopkins University suggested that medical errors recently caused over 251,000 deaths. Medical errors led to around 9.5 percent of deaths that year, making medical errors the third-leading cause of death after heart disease and cancer.

Additionally, a Yale School of Medicine study looked at a specific set of death data. It asked whether causes of death related to a person’s medical care. This study suggested that the death rate from medical errors was closer to 22,000 people yearly.

Another study took an even more direct approach to count medical errors. In separate studies, 30 percent of Canadian anesthesiologists and 89 percent of New Zealand anesthesiologists admitted they administered the wrong medication at least once during their careers.

Healthcare Providers Who Can Commit Medical Malpractice

Medical malpractice results from professional negligence while providing medical care. Anyone involved in providing medical care might bear liability for medical malpractice.

Also, anyone who hired, trained, or supervised the people who committed the medical error could bear liability for the damage. And when employees commit medical malpractice while performing their duties, you can hold their employers liable for the consequences of their negligence.

Some examples of people and entities that you might hold liable for medical malpractice include:

  • Hospitals, clinics, and medical groups
  • Doctors
  • Dentists
  • Nurses
  • Nursing assistants
  • Pharmacists
  • Psychiatrists
  • Physical therapists
  • Medical laboratories

When you get injured, the circumstances of the accident will often determine whether the case falls under ordinary negligence or medical malpractice. If, for example, you slipped and fell in a hospital, the hospital’s insurer might treat it as ordinary negligence if a janitor failed to mop up a spill.

But insurers might treat the same accident with the same injuries as medical malpractice if you lost your balance and fell after receiving the wrong medication.

Types of Medical Errors

Medical errors fall into three categories:

Diagnosis Errors

Diagnosis errors happen when a medical provider gives you the wrong diagnosis. This can happen in a few ways and can provide grounds for a medical malpractice lawsuit.

A doctor or dentist might diagnose you as healthy when you suffer from an injury or disease. As a result of this non-diagnosis, you might not receive the medical care you need to treat your condition.

You might receive the wrong diagnosis. A healthcare provider might diagnose you with a condition different from the one you have. For example, a doctor might diagnose your neck pain as a strained muscle when you have a malignant tumor.

When you receive the wrong diagnosis, you might receive the wrong treatment. This, in turn, will delay you from receiving the correct treatment for your condition.

A healthcare provider could diagnose you with a condition when you are healthy. Thus, a doctor might read your chest images and recommend stent surgery for blocked heart arteries. But you might not have a heart condition, rendering the stent surgery useless.

Lab errors often cause or contribute to non-diagnoses and misdiagnoses. If a lab mixes up your lab results with someone else’s, two patients could receive a mistaken diagnosis.

Treatment Errors

Treatment errors happen when a healthcare provider makes a mistake while treating you.

These errors can take various forms, including:

  • The wrong surgery site
  • Incorrect drug prescription or administration
  • Surgical errors such as a lost instrument inside the patient
  • Poor sanitation that leads to an infection

Treatment errors or surgical errors can result from carelessness. They can also happen due to poor supervision or deficient procedures. Thus, a surgical team could leave a sponge inside a patient because the doctor forgot to pick it up, a nurse miscounted the sponges, or the hospital did not require separate counts from two nurses.

Communication Errors

Communication errors happen when a healthcare provider fails to obtain informed consent from a patient before treatment. Before treating a patient, doctors and dentists must talk to the patient about their condition and the options for dealing with it.

The discussion must include:

  • All reasonable options for treating the condition
  • Risks of each treatment as well as the risk of non-treatment
  • Benefits expected from each treatment

At the end of the discussion, the patient must consent to the treatment. The patient must have the mental capacity to consent and must consent voluntarily.

Most hospitals and medical practices require the patient to sign a consent form. This document proves that the discussion happened, and the patient agreed to the treatment afterward. But in some situations, a patient cannot sign a written consent form.

A guardian can consent on behalf of a ward. Parents can also consent for a minor child. And someone who received healthcare power of attorney can consent for an incapacitated patient.

Healthcare workers can provide emergency life-saving measures without consent if the patient suffers from a life-threatening condition. Patients can also give non-verbal consent through their behavior or actions. Thus, a nurse can draw blood even if you do not give oral consent if you extend your arm toward the nurse when asked.

Elements of Proving Medical Negligence

Healthcare providers carry medical malpractice insurance. When you believe you have a malpractice claim, your medical malpractice lawyer will begin by gathering your medical records. If your medical records support your belief, your lawyer will file an insurance claim with the medical malpractice carrier.

The malpractice carrier assigns the claim to a claims adjuster. The adjuster will investigate the claim to determine whether the insurer bears liability for your injuries. If your medical malpractice attorney proves liability, the insurer will pay the damages associated with your injury.

To win a medical negligence case, your medical malpractice lawyer will need to prove four elements:


Healthcare providers owe a legal duty of care to their patients. The doctor-patient or dentist-patient relationship cements this duty of care.

This relationship usually arises from a voluntary engagement of the doctor by the patient. You visit the doctor for a consultation; the doctor then examines you and your records, then provides medical advice. Based on that advice, you agree to a particular course of treatment.

When you walk into the doctor’s office for the consultation, you and the doctor have a doctor-patient relationship. The relationship ends when you or the doctor terminates it.

In some situations, a doctor-patient relationship gets formed by the circumstances. Suppose an ambulance takes you to a hospital while you’re unconscious. The emergency room doctors have a limited doctor-patient relationship that covers the conditions that led to the emergency room visit.

But not all contact with a doctor will create a doctor-patient relationship. If you meet a doctor at a cocktail party, and the doctor says you should come by the office because of your back pain, you probably do not yet have a doctor-patient relationship.

Similarly, a doctor who jumps into a lake to save you from drowning is probably not acting as a doctor while pulling you to safety.

To win a medical negligence case, you must show that the doctor owed you a duty of care to provide reasonable medical advice and treatment.

Breach of DutyHow to win medical negligence case?

In a medical malpractice case, you must show that the medical provider breached their duty of care. Under the professional duty of care, healthcare providers must supply the advice, care, and treatment reasonable under the circumstances.

This standard of care is objective. This means your healthcare provider’s state of mind does not affect the care you deserve. Instead, the healthcare provider must provide the care they knew or should have known you needed.

The standard of care means that a medical professional can commit a medical error without committing medical malpractice. A medical error only supports a medical malpractice claim if the error was unreasonable.

As a result, your medical malpractice attorney must show that a reasonable medical provider would not have made the error that your doctor made. If your doctor made a reasonable mistake under the circumstances, the error would not justify a medical malpractice lawsuit.


Causation has two elements. A medical malpractice lawyer must prove that the breach of duty was the cause-in-fact of your injuries. This means that the doctor’s actions fell within the sequence of events that led to your injuries. A claims adjuster will deny your claim if the doctor’s actions did not lead to your injuries.

Thus, you cannot claim medical malpractice if your injuries pre-existed the treatment. But if the treatment worsened your injuries, you might have a claim.

A medical malpractice attorney must also prove proximate cause. A doctor’s actions constitute the proximate cause of an injury when an injury is the foreseeable consequence of their actions.

This scenario doesn’t mean that the doctor must foresee your exact injury. But it does mean that the doctor’s actions must be of a type that could reasonably injure a patient. This aspect eliminates rare and unforeseen circumstances from creating medical malpractice liability.

Damages for Injuries

You must suffer an injury to assert a medical malpractice claim and win damages, or a financial award, for your injuries. Your medical malpractice lawyer can review your injuries and the types of damages you can seek.

The most common damages awarded include money for corrective medical treatment, lost wages or salary, and pain and mental anguish from a medical error.

What Compensation Can You Receive After Winning a Medical Negligence Case?

Your medical malpractice attorney will document your losses from your injuries. These losses usually fall into two categories:

Economic Losses

Economic losses include all the ways the medical error affected you financially. Economic losses include expenses paid to correct the medical error and the income you lost after missing work.

Economic losses can also include diminished earning potential. If the medical error caused a permanent disability, you might need to change jobs or quit your job altogether. Your damages may include the income you lose over your lifetime due to the disability.

Non-Economic Losses

Non-economic losses cover the effects of the injury on your quality of life. Your life changes as a result of an injury. You suffer from pain, which causes sleeplessness and makes you irritable. You might also experience mental anguish from fear of the future, anger at the healthcare provider, and sadness over losing your health.

You may lose independence and require shopping, driving, or dressing assistance. You will need to adjust your lifestyle since you might be unable to exercise or walk from the parking lot to your office.

You cannot quantify these losses, but you still experience them. As a result, an insurance adjuster can offer compensation for these non-economic losses. If not, your medical malpractice lawyer can fight for them.

What is The Role of the Medical Malpractice Attorney?

Fernandez Firm Tampa Lawyer
Medical Malpractice Lawyer, Frank Fernandez

A malpractice attorney has the experience and knowledge to assess your case and determine whether you have a viable claim against your healthcare provider. A medical malpractice lawyer can assemble the records to document your injuries. The lawyer can also find and hire expert witnesses to testify about the causes of your injuries.

Contact a personal injury lawyer to discuss how a malpractice lawyer can help with your injuries caused by medical errors.