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What Is Considered Medical Malpractice - morgan and morgan
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What Is Considered Medical Malpractice?

What Is Considered Medical Malpractice?

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What Is Considered Medical Malpractice?

Medical malpractice is often something that we think happens to someone else but would never happen to us. Unfortunately, it does happen, and there are many injuries and deaths caused each year by a medical professional’s negligence. If you think you might have a medical malpractice claim, but you’re not entirely sure what is considered medical malpractice, your first step should be to contact an experienced lawyer right away. They can help you determine if medical malpractice actually occurred, and if it did, how to file a lawsuit and how much compensation you might be entitled to. At Morgan & Morgan, we are always here to help you in these situations. We understand how frustrating and scary it is to experience medical malpractice at the hands of someone who is supposed to take good care of us. Let us help you. Contact Morgan & Morgan today for a free and confidential case evaluation. 

What Is Medical Malpractice?

Medical malpractice occurs when a healthcare provider is negligent, causing you serious and potentially long-lasting injuries. This can be caused by a surgical error, misdiagnosis, and more. Medical professionals aren’t perfect, and mistakes happen. The fact that a doctor visit or surgery didn’t turn out as you hoped doesn’t automatically mean it’s medical malpractice. 

Proving Medical Malpractice

In order to prove medical malpractice, a number of elements must be proven.

Duty of Care

The first thing you have to prove in a medical malpractice claim is that the medical professional owed you a duty of care. This duty of care is shown by providing evidence that a doctor-patient relationship existed. This means you agreed to hire a doctor, and the doctor agreed to be hired. If you saw a doctor in their office for an appointment, or you had imaging or surgery with a particular medical professional, this will almost certainly satisfy this element of the claim. If, on the other hand, you were just speaking with someone at a party who happens to be a doctor, this most likely won’t create a doctor-patient relationship, even if they give you a little bit of medical advice. When trying to determine what is considered medical malpractice, it’s important to look at the relationship you had with the doctor. 


Next, you must show that the medical professional breached the standard duty of care that they owe to all of their patients. The exact wording varies depending on which state you’re located in, but a doctor must provide reasonably competent care. If you’re injured, and it can be shown that any other prudent medical professional would have acted differently in the same or similar circumstances and provided care that was more acceptable and considered standard care by the medical community, this can help prove that your doctor breached the duty of care and was negligent. This isn’t just a difference of opinion, though. It must be shown that the medical professional’s behavior didn’t follow the best practices for their profession.


In order to succeed in a medical malpractice case, you must show that you suffered injuries. If a medical professional was negligent but you didn’t suffer any harm as a result of their negligence, you don’t have an actionable claim. It will never be enough to simply show that a doctor was negligent if nothing adverse occurred as a result. If you don’t know what is considered medical malpractice, a good rule of thumb is that if there’s no injury, there’s no actionable medical malpractice.


Finally, you must prove that the injuries you sustained were directly caused by the medical professional’s negligence. An extreme example is where a surgeon was supposed to operate on your left hip but ends up operating on your right hip instead. Not only is your surgery for the left hip delayed, but you now have significant issues with a hip that didn’t need surgery in the first place. This is clearly a direct result of the surgeon’s negligence. If, on the other hand, your surgeon does everything right and you end up with an infection simply due to bad luck, this won’t be enough for a medical malpractice claim, no matter how severe the infection was. There must be causation. 

Common Examples of Medical Malpractice

Medical malpractice happens more often than we’d like. Some common examples if what is considered medical malpractice include the following:

Improper Treatment

If a doctor attempts to treat you for a specific condition but uses improper means that no other reasonable doctor would’ve used, this might be medical malpractice. In this case, the doctor has properly diagnosed you, but failed to provide you with the appropriate treatment.

Failure to Diagnose/Delay in Diagnosing 

Another very common form of medical malpractice is when a surgeon either fails to diagnose you properly, or there’s a major delay in your diagnosis that never should’ve taken place. This means the patient doesn’t get the treatment they need as soon as possible, which can cause their condition to worsen and create substantial injuries down the road.

Failure to Warn

Doctors and surgeons sometimes fail to warn patients of known risks associated with a treatment or surgery. When this happens, and the patient suffers one of these risks, there’s a good chance of a successful medical malpractice claim. This obligation is generally referred to as informed consent, and it should be provided anytime a doctor treats a patient.  

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Medical Malpractice FAQs

  • Do I need to have a medical expert for my malpractice claim?

    This typically depends on which jurisdiction you’re in. In some cases, you will be required to have a medical expert witness in order to prove your claim. This is something you should discuss with an attorney. Most medical malpractice lawyers will have a list of expert witnesses that they often work with, so they will be able to determine who the best person to hire is and whether it’s necessary to have one. Additionally, states will have different requirements for experts and different methods of qualifying experts in court, so finding a local attorney who knows the rules is very important. 

  • How long do I have to file my claim?

    This also depends upon which state you’re filing a claim in. Most medical malpractice claims must be filed within one to four years. Consult with an attorney as soon as possible to determine when you must file your claim. This is one of the most important dates you need to consider. If you miss the deadline, you likely won’t be able to file your claim and you won’t recover any compensation, even if you were legally entitled to it. While one year, or even four years, may sound like a long time, the time goes by quickly. The longer you wait to contact a lawyer, the more difficult it can be to prove your case. Your lawyer will want to find and speak with witnesses, obtain your medical records, and subpoena internal documents from the hospital. All of this can be complicated and time-consuming, so the earlier you start, the better. Witnesses disappear and memories can fade, so act quickly if you are harmed by a doctor. 

  • Who can I sue in a medical malpractice claim?

    Who you can sue will depend on the circumstances of your case. Who or what caused your injuries? Did multiple medical professionals have some involvement in the negligence? There are many different medical professionals that might be involved in just one case, and you may be able to file a lawsuit against all of them. In some circumstances, you might even be able to sue the hospital where you were treated by the doctor or other professional. Once you figure out what is considered medical malpractice and you determine who committed it, you will have a better idea of who you can hold responsible. 

  • Do I need a lawyer for a medical malpractice case?

    While you aren’t required to hire a lawyer when trying to handle your medical malpractice issue, it’s always a good idea. If you try to speak with doctors or the hospital on your own, they will almost certainly contact their own attorneys and refuse to speak with you any further. In some cases, they might offer you a settlement, which can seem like a great opportunity. Generally, though, this settlement offer will be far less than what you’re truly entitled to. The hospital and its lawyers know that they can often take advantage of people who don’t have legal representation. It’s always better if you have a lawyer who can speak with and negotiate with the hospital on your behalf. 

  • How Do I know if it’s medical malpractice?

    In most cases, you might not know if what you’ve experienced is medical malpractice or not. Knowing what is considered medical malpractice can be complicated. Even if you clearly suffered injuries, there’s no guarantee that it wasn’t just bad luck. When you hire an attorney, they can determine if it’s medical malpractice by reviewing medical records, internal hospital documents, and speaking with the medical professionals involved in your care. A lawyer can also consult with an expert witness for assistance. 

  • Morgan & Morgan Can Assist With All of Your Medical Malpractice Issues

    At Morgan & Morgan, we understand the complexities involved in medical malpractice cases. In addition to physical injuries and complications, it’s not uncommon for a victim to suffer serious emotional injuries as well. While your first thought after a medical issue might not be to call a lawyer, it’s something you should consider. We can help make this process as easy as possible for you so that you can grieve and deal with your injuries appropriately. At Morgan & Morgan, we’ve been handling medical malpractice cases for decades. We have recovered more than $15 billion dollars for our clients throughout our career. Additionally, we take all of our cases on a contingency fee basis, so you will never have to pay us anything out of your own pocket. We only get paid when we win or settle your case. Contact Morgan & Morgan today for a free case evaluation.

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Last updated on May 11, 2023

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