How to Define Medical Malpractice

According to what statistics you read, medical malpractice causes between 44,000 and 98,000 deaths, and up to 1.5 million injuries each year. What exactly is medical malpractice, though? The definition of medical malpractice varies depending on the source of the definition. Medical malpractice is an area of law, which cannot be defined in the one or two sentences commonly provided by a dictionary. There are many things one must consider when defining medical malpractice. Following the steps below will help you define medical malpractice.


  1. Image titled Define Medical Malpractice Step 1
    Determine if a duty of care is done. One must owe another a duty of care before he or she may be held liable for injuries he or she causes. Each of us owes some type of duty of care to certain others whenever we engage in activities that may harm another person or damage his or her property. For example, the driver of a vehicle owes a duty of care to pedestrians and other drivers with whom he or she shares the road. To determine if a duty of care is owed by a healthcare provider:
    • Determine if the provider is a “healthcare provider”. Because medical malpractice is actionable under state law, the definition of a healthcare provider who may be liable for malpractice varies from state to state. Definitions commonly include doctors, nurses, dentist, and lab technicians. Check your state’s civil or professional code or consult with an attorney to determine how your state defines health care provider.
    • Determine if the patient is within the class of people owed a duty. A person must be under the direct medical care of a provider before the provider owes him or her any duty of care. For example, if your doctor shares an office building with two other doctors, your doctor owes you a duty of care, but the other two doctors do not.
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    Determine the standard of care expected. The duty, or standard of care, that is owed a person is known as ‘ordinary care,’ or that care which a reasonable person would exercise under similar circumstances. When determining the expected standard of care, keep these things in mind:
    • The general rule, for healthcare providers, is that the standard of care expected is that level of care, skill, and treatment that is recognized as acceptable and appropriate by reasonably prudent health care providers in the same general line of practice.
    • Expert testimony may be required. The expected standard of care in any specific situation may be difficult to determine, as is the expert testimony required, in order to establish what is acceptable and appropriate, under the particular circumstances.
    • Some states use a local standard and others a national. Using a local standard to determine the standard of care means that the care expected is that which is acceptable and appropriate in that particular area (this could mean in that particular neighborhood, county, or state). Using a national standard means that the care must be acceptable and appropriate nationwide, in any neighborhood or state. Check your state’s civil or professional code or with an attorney to determine which standard is used in your state.
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    Determine if there was a breach of duty. A breach of the duty owed to another must occur before a party can be held liable for the injuries of another. Determining if there has been a breach of duty in a medical malpractice claim can be difficult and usually requires that at least one expert declare that the healthcare provider failed to live up to the expected standard of care. When determining if there was a breach of duty, keep these things in mind:
    • Whether there was a breach of duty or not may depend on whether your state uses the local or the national standard. By local standards, an act may be considered reasonable and appropriate, when by national standards, the same act would be considered malpractice.
    • When a state uses the local standard of care, it also usually requires any expert testimony be offered by a practitioner be licensed to practice in that state. This rule is meant to prevent practitioners unlicensed in the state, and therefore unfamiliar with local custom, from testifying concerning local standards.
    • For every expert opinion, there is an expert with the opposite opinion. If the answer to the question, did the provider breach his or her duty, rests on expert testimony, there will almost certainly be experts backing up both answers. The determination of whether a breach occurred is usually made based on the most believable expert or experts.
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    Determine if the breach caused the injury. Simply breaching a duty does not leave a healthcare provider responsible for medical malpractice. The breach must be a proximate cause of the injury of which the patient complains. When determining if the breach is a proximate cause of the injury, keep in mind:
    • Intervening, or superseding, causes may need to be considered. An intervening cause is a separate act or omission, which breaks the causal link between the alleged malpractice and the injury. For example, if after a hip replacement surgery a person begins experiencing problems with the new hip, possibly caused by the doctor’s negligence, but slips and falls on a wet floor, damaging his or her replacement hip, before seeing a medical professional, the intervening slip and fall may relieve the doctor of responsibility. The intervening act may have made it impossible to tell if the doctor or the fall caused any of the damage to the hip, thereby negating the doctor’s liability
    • Expert testimony may be required. Just as experts are often needed to determine what the standard of care is and if that standard was breached, experts are also required to determine the cause of the injury.
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    Determine if there are any damages. In order for an act to be considered medical malpractice, it must have not have just caused injury, but it must have caused damages as well. Damages may be economic, such as medical expenses, loss of wages, Court costs, and attorney fees, or non-economic, such as physical or emotional pain and suffering. When calculating damages, a party may consider both current and future medical expenses and loss of wages. Expert testimony is generally used to establish future wages, which have been lost, and future medical expenses that will be incurred.

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