Medical malpractice occurs when a healthcare provider deviates from the accepted standard of care, resulting in harm to the patient. This breach of duty manifests in many different ways such as medication errors, misdiagnosis, delayed diagnosis, failure to treat, surgical mistakes, anesthesia errors, birth injuries, hospital-acquired infections, and lack of informed consent. When doctors, nurses, or other medical professionals fail to act with the competence and attention expected in their field, patients can suffer serious and often irreversible injuries.
The scope of the problem is staggering: According to multiple studies, more than 250,000 deaths per year in the United States are due to medical errors, making it the third leading cause of death.
This article will explore the most common types of medical malpractice claims as well as how to recognize and respond to a potential medical malpractice issue. But first it’s essential to understand the “four Ds” of a medical malpractice claim: Duty, Dereliction, Direct Causation, and Damages.
1. Duty
The first element is duty, which refers to the legal obligation a healthcare provider has to their patient. This duty arises when a doctor-patient relationship is established. Once that relationship exists, the provider is responsible for delivering care that meets the accepted medical standard—what a competent professional with similar training would do under the same circumstances.
2. Dereliction (Breach of Duty)
Dereliction—also called ‘breach of duty’—occurs when the healthcare provider fails to meet that standard of care. This could mean doing something a competent doctor wouldn’t do, such as when a doctor negligently performs surgery on the wrong limb. It could also mean not doing something a competent doctor would do, such as when a doctor doesn’t order necessary bloodwork. Essentially, it’s a lapse or mistake that shows negligence in how the healthcare provider handled the patient’s care.
3. Direct Causation
Causation links the breach of duty directly to the harm suffered. While in some states, the standard may be direct causation, in Pennsylvania, the standard is proximate causation. Your lawyer would have to prove that the healthcare provider breached their duty to the patient and that such a breach proximately caused the patient’s injuries. In other words, the healthcare provider’s failure to properly care for the patient more likely than not caused their injuries.
4. Damages
Finally, there must be damages—real, measurable harm suffered by the patient as a result of the medical error. In Pennsylvania, there are two main categories of compensation: economic and non-economic. Economic damages are quantifiable, the specific figures can be established, or at least reasonably estimated, with documentation. Examples of economic damages include: medical expenses, loss of future earnings, and lost wages.
Non-economic damages are not quantifiable – they are more of a subjective assessment of the challenging consequences of a medical malpractice case. Examples of non-economic damages include: loss of companionship, loss of life’s pleasures, pain and suffering, humiliation and embarrassment, and disfigurement.
A successful medical malpractice claim hinges on proving all four Ds, above. If any one of these elements is missing, the case may not hold up in court.
The most common types of medical malpractice claims
Misdiagnosis and Delayed Diagnosis
Misdiagnosis and delayed diagnosis are among the leading causes of malpractice claims.
A misdiagnosis occurs when a healthcare provider inaccurately identifies a condition. For example, a patient suffering from heart disease might be diagnosed with indigestion, leading to ineffective treatment and possibly worsening health. In some cases, the patient receives unnecessary treatments for a condition they don’t actually have, which can cause further harm.
Delayed diagnosis, while similar, involves a correct diagnosis that is made later than it should have been. This delay can prevent timely treatment, allowing a condition to progress. For example, early-stage cancer might be curable, but a delayed diagnosis could result in a more advanced and less treatable stage of the disease.
Diagnosis errors and delayed diagnosis can stem from a variety of causes, including cognitive biases (e.g., anchoring on a less likely diagnosis), communication failures among staff, or improper interpretation of diagnostic tests.
Both misdiagnosis and delayed diagnosis can cause physical, emotional, and financial harm. Patients may suffer worsening health, lost time, additional medical expenses, and even permanent disability. In some cases, misdiagnosis and delayed diagnosis mistakes can be fatal.
Misdiagnosis and delayed diagnosis are not just unfortunate mistakes they can be life-changing events that warrant accountability.
Failure to Treat
“Failure to treat” occurs when a healthcare provider fails to take appropriate action to care for a patient’s known or suspected medical condition. This can happen in a variety of settings from busy emergency rooms to private clinics and can involve physicians, nurses, specialists, and even healthcare systems as a whole.
This type of malpractice differs from misdiagnosis or delayed diagnosis. In many “failure to treat” cases, the provider correctly identifies the condition but does not act—or does too little, too late. Here are some examples of a healthcare professional failing to treat:
- A patient is diagnosed with pneumonia but is sent home without antibiotics.
- A hospital fails to admit a patient who clearly needs monitoring and care.
- A physician withholds treatment due to assumptions about a patient’s insurance status or ability to pay.
- A healthcare provider fails to refer a patient to a necessary specialist.
- A doctor discharges a patient prematurely despite clear symptoms of deterioration.
Failure to treat can lead to prolonged illness, permanent injury, or even death. Patients may lose time from work, face enormous medical bills, or endure unnecessary pain and suffering. Families may be left with grief, unanswered questions, and a sense that something preventable was allowed to happen.
Why do healthcare professionals sometimes fail to treat? In some cases, healthcare staff are overworked due to improper or understaffed facilities. Improperly staffed facilities are usually the outcome of an improperly administered health system which can also lead to pressure to reduce costs or avoid hospital admissions. There may be breakdowns in communication between various healthcare providers, and someone could lose test results or commit some administrative error. And, some healthcare providers simply have biases or prejudices against certain patients causing them to not prioritize that patient’s care. Unfortunately, even a brief lapse in care can have catastrophic or fatal consequences, especially if the condition progresses while untreated.
Surgical Errors
Surgery is often a critical and life-saving procedure, but when things go wrong in the operating room, the consequences can be devastating. Surgical errors are a significant category of medical malpractice claims. These are not just unfortunate complications, they are preventable mistakes that can have lifelong impacts.
Surgical errors are sometimes referred to as “never events” because they are mistakes that should never happen under proper medical care. Common examples include leaving a surgical instrument in the body cavity, administering the wrong amount of anesthesia, damaging internal organs, or failing to follow up properly after surgery.
Another common type of surgical error is operating on the wrong body part. For instance, let’s say a surgeon operated on a patient’s left knee instead of their right knee when the right knee was clearly designated as the knee that needed the surgery. The patient then suffered years of chronic pain and had to undergo additional surgeries. The patient was smart, though: They hired a medical malpractice lawyer who sued the surgeon, the hospital, and the surgical staff. In the fact finding phase of the case, the mistake appeared to result from a failure in the hospital’s checklist system. The patient was able to collect compensation for their economic expenses, as well as their pain and suffering.
In that example, it was a substandard hospital checklist system that led to the surgical error. Other common causes of surgical errors are poor communication, fatigue, inadequate planning, or even a lack of skill or training.
Remember that surgical errors are “never events.” They can be devastating and they never should have happened.
Medication Errors
Medication errors are another common cause of medical malpractice cases. The following are four of the more common types of medication errors.
Prescribing Errors
A prescribing error occurs when a physician or nurse orders the wrong medication, the wrong dose, or fails to consider the patient’s allergies, medical history, or potential drug interactions. For example, a doctor prescribes a high-dose blood thinner to a patient already taking aspirin, failing to recognize the increased risk of internal bleeding.
Transcribing Errors
A transcribing error occurs when medication orders are entered incorrectly into the system—often during electronic health record (EHR) input or verbal-to-written communication. For instance, a doctor verbally prescribes 10 mg of a drug, but a staff member types 100 mg into the electronic system, causing the patient to suffer from a medication overdose.
Dispensing Errors
Dispensing errors occur at the pharmacy level, where the healthcare provider gives the wrong drug or dosage to the patient, or where the instructions for taking the medication are incomplete or erroneous. For example, a pharmacist confuses two similarly named medications—like hydroxyzine and hydralazine—and dispenses the wrong one.
Administering Errors
Administration errors happen when nurses or other healthcare professionals incorrectly administer a medication—wrong patient, wrong time, wrong dose, or wrong method. For instance, a nurse administers a medication intravenously that was supposed to be given orally, leading to a rapid and dangerous absorption rate.
Birth Injuries
“Birth injury” is defined as damage or injury to the child before, during, or just after the birthing process. Birth injuries are some of the most devastating forms of medical negligence. And children who have suffered birth injuries might need lifelong care. Treatment may include various surgeries, physical therapy, psychological or psychiatric treatment, occupational therapy, speech therapy, medication, and adaptive equipment, such as wheelchairs, orthotics, and strollers.
Here are some key signs that your child suffered a birth injury.
Failure to Meet Milestones
If your child is failing to meet milestones, they may have suffered a birth injury. For instance, milestones for a four-month-old baby include cooing, smiling, ability to follow objects with their eyes, and ability to hold their head up independently. By nine months, your baby should be able
to sit upright without assistance and respond to sounds. By one year old, your baby should be crawling and by 18 months, they should be walking. By two years old, they should be able to run, kick balls, climb, as well as communicate by pointing and using short sentences. Four and five-year-olds should speak in complete sentences, understand basic grammar, tell stories, and use the bathroom independently. Signs of your child’s birth injury might not become apparent until the child reaches a bit older age.
Brain Injury
The brain is one of the most delicate organs during childbirth. It is also the most important organ in a person’s body because it controls the bodily functions as well as the cognitive
processing. Thus, birth injuries resulting in brain damage can be the most devastating of any birth injury. There are a variety of brain injuries including hypoxic ischemic encephalopathy (HIE or, also, perinatal asphyxia), brain bleeds (hemorrhages or hematomas), periventricular
leukomalacia (PVL), kernicterus, cerebral palsy, caput succedaneum, and hydrocephalus. Many of these are caused by hypoxia or a lack of oxygen in the blood.
Major signs of brain injury include physical symptoms such as headaches and seizures; sensory symptoms such as sensitivity to loud noise, bright lights, and vision problems; cognitive symptoms such as executive functioning deficits, memory problems, and inability to form age-appropriate thoughts and conclusions; speech symptoms such as difficulty communicating,
enunciating, or speaking at all; and behavioral and emotional symptoms such as anxiety, disinhibition, poor regulation of impulses, and depression.
“Baby Born Blue”
Sometimes after birth, a baby will appear to be blue in color. This blue skin tone is due to a lack of sufficient oxygen to support healthy red blood cells. (Blood cells are only red when they have
enough oxygen.) If the appearance of blue skin remains for several minutes after the birth, this could be indicative of a serious medical problem. A baby could be born blue because of issues during the labor and delivery that were not managed by their health care team. Major signs of a child who had insufficient oxygen in their blood include developmental delays, cognitive deficits, and serious and possibly life-threatening heart and lung problems.
Anesthesia Errors
Anesthesia is a cornerstone of modern medicine—allowing patients to undergo procedures with little or no pain. But when something goes wrong, the consequences can be devastating. Anesthesia errors are among the most serious types of medical mistakes and are often at the center of medical malpractice claims.
Anesthesia errors occur when a healthcare professional makes a mistake in administering anesthesia before, during, or after a surgical procedure. These mistakes can include:
- Dosage errors: Giving too little anesthesia or too much anesthesia. If a patient receives too much anesthesia, they could experience prolonged unconsciousness, seizures, and even death.
- Failure to monitor: Not tracking the patient’s vital signs or reaction to anesthesia during the procedure could lead to serious injuries including death.
- Improper intubation: Causing damage to the airway or failing to secure the airway can lead to brain damage or death.
- Failure to identify allergies or medical history: Administering anesthesia despite contraindications means that the healthcare provider failed to ask or identify the patient’s allergies to anesthesia, resulting in a serious allergic reaction (or anaphylaxis).
- Delayed administration or failure to respond to complications: Not acting quickly in an emergency situation can lead to serious, life-altering injuries or death.
It’s not just the anesthesiologist who can make a mistake and cause injuries. Anesthesia errors can result from the negligence of nurses, technicians, and other healthcare staff as well. Like many mistakes in the healthcare setting, anesthesia errors can stem from human error as well as systemic issues. Contributing factors may include inadequate staffing or training, miscommunication among surgical team members, fatigue or burnout among providers, malfunctioning equipment, and/or poor preoperative assessment protocols.
Anesthesia-related malpractice cases can be complex, often requiring expert testimony to establish what went wrong and whether it could have been prevented. But for many victims and families, pursuing a claim isn’t just about compensation it’s about accountability and ensuring it doesn’t happen to someone else.
Hospital-Acquired Infections
According to the CDC, on any given day, roughly 1 in 31 hospitalized patients has at least one healthcare-associated infection (HAI). HAIs are infections that develop during a hospital stay and were not present at the time of admission. These infections can prolong hospital stays, increase medical costs, and in severe cases, lead to disability or death.
Examples of HAIs include:
- MRSA (Methicillin-resistant Staphylococcus aureus)
- C. difficile
- Surgical site infections (SSIs)
- Central line-associated bloodstream infections (CLABSIs)
- Catheter-associated urinary tract infections (CAUTIs)
- Ventilator-associated pneumonia
Some causes of HAIs include improper hand hygiene (healthcare staff failing to sanitize hands frequently or thoroughly); unsanitary equipment (the reuse or improper sterilization of surgical instruments or catheters); failure to monitor and respond (delayed recognition and treatment of infection symptoms); understaffing, overworking, and/or improper hospital human resource administration (improper staffing which leads to oversight or rushed care); and lack of informed consent (failing to warn patients about infection risks). That last cause of HAI (lack of informed consent) is what we will cover next, in greater detail.
Lack of Informed Consent
When we step into a doctor’s office or a hospital, we place immense trust in the professionals who care for us. We assume we’ll be treated with respect, dignity, and above all, honesty. But what happens when that trust is broken not through a botched surgery or misdiagnosis, but because no one told you what you were really agreeing to in the first place?
This is the often overlooked but deeply troubling issue at the heart of informed consent in medical malpractice cases.
Informed consent isn’t just a signature on a form. It’s a process an ethical and legal obligation for medical professionals to clearly explain the nature of the proposed treatment or procedure, the potential benefits and risks involved, reasonable alternatives (which could include doing nothing!), and the likely outcome of refusing treatment. Only after understanding this information can a patient truly give voluntary, informed consent.
Unfortunately, many patients undergo procedures without ever being fully informed. Maybe a surgeon downplays the risks. Maybe a nurse rushes through the paperwork. Maybe no one ever informs the patient that doing nothing might be a reasonable and safer option. Maybe the healthcare provider fails to explain the long-term consequences of the procedure. Maybe there are cultural and language differences that impede the patient’s ability to understand the information. Yet patients often sign consent forms under pressure, in pain, and/or with incomplete understanding.
And when something goes wrong, those same documents are used to suggest the patient “agreed to the risks.”
But did they?
Even if a procedure is performed perfectly, if a patient wasn’t made fully aware of the risks or alternatives, the healthcare provider can still be held liable.
For example, let’s say a woman suffers from heavy periods and her doctor recommends she undergo a hysterectomy, which would end the woman’s menstrual cycle. But the physician never told her that the procedure would affect her hormone levels. And, after the surgery, the woman undergoes significant depression and dies by suicide. The hysterectomy itself wasn’t faulty – it was performed with the reasonable skill expected of the surgeon. But there was a lack of informed consent because the doctor failed to properly warn and inform the woman of the foreseeable consequences of the surgery. This lack of informed consent is essentially a violation of the woman’s autonomy and right to make informed decisions about her own body.
When the fundamental right to make informed decisions about one’s own body are violated, such an ethical violation can have serious, life-altering consequences or, as in the example above, the ethical violation could lead to death.
Recognizing and Responding to Potential Medical Malpractice
Recognizing potential medical malpractice can be challenging, After all, when a doctor makes a mistake, it’s not always medical malpractice. A medical mistake occurs when a doctor or other healthcare professional makes a mistake in the deliverance of care. Perhaps the doctor prescribes you the wrong medicine or the wrong dosage. Or maybe the nurse doesn’t insert your intravenous line correctly. Those mistakes may result in medical malpractice and they may not.
When does a medical mistake rise to the level of medical malpractice? A healthcare professional’s medical error rises to the level of medical malpractice when the mistake increases your risk of harm for injuries. Certain red flags may help indicate that you have a problem that may have been caused by medical malpractice such as, unexplained complications or worsening of symptoms, conflicting information from different providers, missing or changed documentation in your medical records, and/or refusal to discuss errors or provide second opinions. These are important details to keep track of in your efforts to recognize potential medical malpractice.
Steps to Take if You Suspect Malpractice
If you suspect that you suffered injuries as the result of a medical provider’s mistake, you may have a valid medical malpractice case. But time is of the essence. Don’t sit around and contemplate what you should do. Below are some of the important steps you should take in a timely manner.
Contact a Medical Malpractice Lawyer
The person best equipped to help you file a successful medical malpractice case is an attorney who specializes in medical malpractice cases. The sooner you contact this attorney, the more likely you will have a good outcome for your case. Medical malpractice law is complex, requiring expertise in both legal and medical issues. A reputable medical malpractice law firm plays several key roles including evaluating the case, collecting evidence, working with expert medical professionals, and litigating the case. Experienced medical malpractice law firms understand the nuances of medical malpractice law in your jurisdiction, including applicable statutes of limitations and necessary qualifications for damages.
How to Choose the Right Medical Malpractice Attorney
If you’re considering a medical malpractice claim, selecting the right attorney can make all the difference. Here’s what to look for:
Experience and specialization: Choose a lawyer or firm with a strong track record in
handling medical malpractice cases. Verify their expertise with claims similar
to yours. For instance, if your child suffered a birth injury, find a lawyer who has significant experience working on birth injury cases.
Resources: Medical malpractice cases often require substantial resources, such as access to medical experts who can write ironclad reports and testify in court. Make sure the medical malpractice law firm has a vast network of medical professionals they can reach out to for consultation, information, reporting, and testimony.
Communication and compassion: Medical malpractice cases are deeply personal. Work with a medical malpractice attorney who listens, communicates clearly, and genuinely cares about your well-being.
Contingency fees: Find a medical malpractice law firm that will take your case on a contingency fee. That means that you don’t pay the firm for their time or efforts. The only way the firm gets paid is if they win your case; then they will reimburse themselves and pay out their attorney fee as a percentage of the winnings.
Start by scheduling a consultation. Find a medical malpractice firm that offers a free initial evaluation to help you understand your options and determine if they are the right fit.
When You Should Seek Help
Responding to potential medical malpractice should be done expediently. As mentioned, every state has a statute of limitations, which is the window with which you can file your lawsuit against the healthcare provider. In Pennsylvania, for instance, you have two years to file a lawsuit, starting from when you knew or should have known that your injury was the result of the defendants’ medical mistake. In the case of a deceased party, Pennsylvania law allows you two years from the official death date to file a wrongful death medical malpractice lawsuit. If you miss this crucial deadline, you may lose the right to file a lawsuit.
An important exception to the Pennsylvania statute of limitations is in cases of “fraudulent concealment.” This statute provides that if a plaintiff is persuaded or lulled by the defendant medical care providers that the cause of their injury was not actionable in court because they did nothing wrong and/or concealed relevant facts from the plaintiff, the plaintiff may argue that they have two years from the date of when they knew or should have known their injury was caused by the defendants to file a case. The potential exception means that the plaintiff may have two years from the time they discovered (or should have discovered) that the defendant’s actions or omissions could likely have caused their injury.
As mentioned above, it’s complicated. And this is why you need to contact a medical malpractice attorney as soon as you suspect medical malpractice occurred. Your medical malpractice attorney will have to figure out the best timing for filing the Complaint. In addition to the question of when to file malpractice lawsuits, your attorney needs to figure out where to do so. Your medical malpractice attorney should spend considerable effort figuring out the best venue for your case. Several factors go into this analysis, including location of medical treatment, the location of defendants’ offices and practices, and whether the county is typically supportive of medical malpractice plaintiffs.
Collect and Preserve Evidence
It’s important that you maintain a detailed record of all medical reports, diagnoses, treatments, and conversations with healthcare professionals regarding your personal injury. Medical records, intake forms, lab slips are all examples of crucial pieces of evidence. This is another reason the
first step (“contact a medical malpractice lawyer”) is so essential: your medical malpractice lawyer can, as mentioned above, tell you what evidence is necessary and will review and digest all of the necessary information because it is essential to your lawsuits. Your evidence is essential because it supports the argument that the healthcare professionals’ actions or omissions caused your injuries. This evidence will also help establish the extent of your injuries, detailing every related issue whether it’s physical or emotional.
The above are the most common and frequent claims of medical malpractice as well as a brief explanation of how to recognize and respond to medical malpractice. If you believe you or a loved one has suffered an injury due to the negligence of a healthcare provider, contact the experienced medical malpractice attorneys at VSCP LAW.
