Medical malpractice: what it is, and what to do next.

Medical malpractice is the legal term for harm caused when a healthcare provider’s care falls below the accepted standard of care. The provider might be a doctor, nurse, surgeon, pharmacist, hospital, or another medical professional or facility.

It covers mistakes of action, like operating on the wrong site or giving the wrong drug. It also covers mistakes of omission, like failing to order a test, follow up on an abnormal result, or respond when a patient’s condition changes.

Details vary by state, but most medical malpractice claims turn on four questions:

• Duty: Was there a provider–patient relationship, so the provider owed the patient a duty of care?
• Breach: Did the care fall below the standard of care, meaning what a reasonably careful provider in the same field would have done in similar circumstances?
• Causation: Did that failure actually cause the injury, rather than the underlying illness or a known risk?
• Damages: Did the patient suffer real harm, such as more medical treatment, lost income, pain, disability, or death?

All four usually have to be shown. A clear mistake that caused no harm, or a serious harm that no one could have prevented, generally isn’t enough on its own.

Medicine carries real risk. Treatments can fail and procedures can have complications even when everything is done correctly. So the question isn’t only “did something go wrong?” It’s “did a provider fall short of the standard of care, and did that cause the harm?”

That can be hard to judge from the outside, and you don’t need to figure it out yourself. Attorneys answer it with your medical records and, usually, an independent medical expert.

Most concerns fall into a few broad areas:

• Diagnosis concerns: a condition that was missed, diagnosed late, or misdiagnosed.
• Surgical errors: mistakes during or after surgery or another procedure, including anesthesia.
• Hospital and emergency care: failures in monitoring, nursing care, infection control, or discharge.
• Birth injuries: preventable harm to a mother or baby around delivery.
• Medication errors: the wrong drug, the wrong dose, or a dangerous combination.

Some concerns cross categories, and some don’t fit neatly into any of them. Informed consent is one example: a patient wasn’t told about significant risks or alternatives before agreeing to treatment.

Malpractice isn’t limited to medicine. See types of malpractice for legal, accounting, and other professions.

Responsibility can rest with an individual provider, a facility, or both. Depending on the facts, that can include:

• Physicians, surgeons, and specialists
• Nurses, physician assistants, and nurse practitioners
• Anesthesiologists and nurse anesthetists
• Radiologists and laboratories that read or report test results
• Pharmacists and pharmacies
• Hospitals, clinics, urgent care centers, and surgical centers
• Nursing homes and other long-term care facilities

Who employed whom matters. Many doctors who work in hospitals aren’t hospital employees, which can affect who is legally responsible.

Medical malpractice cases depend heavily on medical evidence, so attorneys usually look at:

• The medical records from every provider involved, before and after the event.
• An independent medical review. Many states require a qualified medical expert to support a claim before or soon after it is filed.
• The harm and its effects on health, work, family, and daily life.
• Timing, to confirm which deadlines apply.

This review takes time and expertise, so attorneys are selective about the cases they take. An attorney declining a case doesn’t necessarily mean you have no claim, and you can always speak with another attorney. See why attorneys turn down medical malpractice cases.

Every state limits how long you have to bring a medical malpractice claim. These limits are called statutes of limitations and statutes of repose. They vary by state and by type of case, and some are short.

In many states, the clock can start when the injury was discovered, or reasonably should have been, rather than on the date of care. Special rules often apply to injuries to children and to claims against government providers. Only an attorney can tell you which deadlines apply to you.

For Florida, see Florida medical malpractice deadlines.

• Request your medical records. Under federal law (HIPAA), you generally have the right to get copies of your own records, and providers usually have to respond within 30 days.
• Write down a timeline while it’s fresh: dates, providers, symptoms, what you were told, and who was there.
• Keep documents, including discharge papers, prescriptions, and letters from providers or insurers.
• Keep getting the care you need. Your health comes first, and you can see a different provider.
• Be careful what you post online about your care or your health.
• Talk to an attorney before signing any release or settlement papers from a provider or insurer.

For a step-by-step checklist, see what to do if you think a doctor made a mistake.

We’re not a law firm, and we don’t give legal advice. We connect people with participating medical malpractice attorneys. You answer a few short questions, see which firm would receive your request, and decide whether to send it.

See exactly how it works.