Medical Malpractice Questions

What is considered malpractice?

According to the American Board of Professional Liability Attorneys, medical malpractice occurs when a hospital, doctor, or other health care professional causes an injury to a patient through negligence. Negligence is the legal way to say the doctor failed to meet the standard of care i.e. failed to do their job properly. Negligence often is a failure to diagnose, failure to treat properly, improper medication, etc.

What is a malpractice suit?

A malpractice lawsuit seeks to recover damages caused by a hospital or doctor for their negligence. A patient can only file a malpractice suit if there is evidence that the hospital, doctor, or other healthcare professional was negligent. Although a patient may be harmed, that is not enough. Bad results in treating a patient are common and do not amount to malpractice. Medical mistakes alone do not mean the healthcare provider was negligent. For most cases, malpractice requires an expert (another physician) to testify that the doctor’s conduct fell below the standard of care. If there is not evidence that the physician was negligent, then a medical malpractice suit cannot be filed and if a suit is filed, the court will eventually dismiss it on summary judgment.

How do you prove medical malpractice?

You must prove that the hospital, doctor, or other healthcare professional owed the patient a duty (i.e. they treated the patient), the doctor’s acts or omissions fell below the standard of care (i.e. they were negligent in their treatment), and that breach of the standard of care caused the patients’ injuries. Doctors have a duty to “possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors [or] other healthcare providers practicing under similar circumstances, giving due consideration to the locality involved.” When a medical provider breaches their duty to their patients, they have committed malpractice.

In practical terms, the knowledge required of a physician is found in medical textbooks and through medical journal articles. Or, in some cases, it is basic enough that it is widely known by other physicians. An expert medical witness e.g. another doctor must testify to what the alleged negligent medical provider was required to do when faced with the patient’s situation.

What is the average settlement for medical malpractice?
There is no average settlement for a medical malpractice case. Every case is unique. Often the value of a medical malpractice case is dependent on variables that are out of control of the patient or their family e.g. medical malpractice cap, amount of insurance, the extent of the injuries, the strength of the malpractice, etc.

What are the four elements of medical malpractice?
Duty owed to the patient, breach of that duty, injury caused by the breach and damages.

How to file a medical malpractice claim?
Most medical malpractice cases cannot be handled without a lawyer. If you hire a lawyer, the first thing that a lawyer will do is obtain the medical records. If a death is involved, then a personal representative will need to be appointed to obtain the medical records. After the medical records are obtained, the attorney or their staff will review the records and potentially medical literature to determine if there is the potential for a medical malpractice case. If there appears to be a breach of the standard of care, then the attorney most often will hire an expert to review the records and provide an opinion. If the expert finds there is a breach of the standard of care that caused damages, then the attorney will take the next appropriate step: filing a complaint with the New Mexico Review Commission if the health care provider is qualified under the New Mexico Medical Malpractice Act or filing a lawsuit if the health care provider is not qualified. If the healthcare provider is a state entity, then a tort claims notice would need to be served prior to the lawsuit.

Do most medical malpractice cases go to trial?
No. It is estimated that only 7% of medical malpractice cases go to trial. According to one study, of the claims paid only 2.6% were jury verdicts. David M. Studdert, et. al., CHANGES IN PRACTICE AMONG PHYSICIANS WITH MALPRACTICE CLAIMS, 380 New ENG J. Med 1247 (2019). Which means the healthcare providers win most of the time when a medical malpractice case is taken to trial.

Who can be held responsible for medical malpractice?
Doctors, surgeons, a variety of other healthcare professionals working in a hospital, dentists, psychiatrists, nurses, nurse practitioners, physician assistants and chiropractors can be held liable for medical malpractice.

What is the standard of care?
The standard of care is the level care required of a healthcare provider. Usually another healthcare provider will testify to what level of care another healthcare provider was required to provide to a patient. The standard of care makes sure doctors are following treatment guidelines to avoid injuring a patient or making their condition worse. The standard of care is often set by medical textbooks, medical journals, and plain common sense.

What are examples of medical malpractice?
There are numerous examples of medical malpractice and it can come in all types of shapes and sizes. Some examples include failure to diagnose a patient, unnecessary surgery, errors in surgery, wrong medication or dosage, discharging a patient from the hospital too soon, failure to order proper testing, failure to recognize a patient’s symptoms, etc. Sometimes, another medical professional will alert the patient that another doctor was negligent.

What are the statute of limitations for a medical malpractice case?
In New Mexico, a medical malpractice case statute of limitations require cases must typically be filed within 3 years from the date of the malpractice for any private doctor or healthcare provider and 2 years if the healthcare provider is the state or federal government. There are exceptions to these rules which can allow for more time under certain conditions. There are also certain claims, e.g. EMTLA that must be filed within 2 years of the violation.

These medical malpractice questions and answers should help you better understand if you have a medical malpractice case and how much time you have before you can no longer pursue your case. If you believe you have a medical malpractice case, reach out to our office at (505) 242-7200. We will work with you to determine if you have a viable malpractice case to pursue. The Davis Kelin Law Firm has been handling malpractice cases for 10+ years.