Medical malpractice occurs when a healthcare provider provides medical service that deviates from the acceptable medical community standards of practice and as a result causes harm to the patient. The community standards of practice are those standards adhered to by members of the local medical community who have the same or similar level of training, level of expertise, knowledge, and patient care as the healthcare provider. A healthcare provider may be a physician, dentist, nurse, chiropractor, psychologist, or therapist.

A plaintiff may also bring suit against the healthcare provider’s employer or the local, state or federal agency operating a hospital on a vicarious responsibility theory. Such a case may be brought when the employee committed negligence while acting within the scope of employment. A suit may also be brought against a hospital or medical facility that negligently hires a healthcare worker that is an independent contractor rather than an employee.


Medical malpractice is a form of negligence. While negligence is based on common law, many states have enacted legislation regarding medical malpractice. Some statutes limit the amount of damages or attorneys’ fees a plaintiff may receive in a medical malpractice action. Other states require a plaintiff to obtain a “certificate of merit” before initiating litigation. A physician reviews the claims and medical records to determine whether the healthcare provider deviated from the acceptable community medical standards. Once the certificate is obtained, the plaintiff is allowed to bring suit.

To prevail at trial, the plaintiff must prove by a preponderance of the evidence that the healthcare provider owed a duty of care to him, that duty was breached, the breach caused injury, and the plaintiff suffered physical, emotional, or other damages.

Damages for Medical Malpractice

The plaintiff may be entitled to recover compensatory and punitive damages. Compensatory damages include payment for present and future losses, medical expenses, loss of earnings, harm to the marital relationship, and physical and emotional pain and suffering. Courts award punitive damages to punish a healthcare provider for intentional acts and to deter similar conduct by other healthcare providers. Attorneys’ fees are sometimes awarded as well. Because there are certain risks that are inherent in the treatment of medical conditions, a patient is not entitled to damages simply because an error in diagnosis or treatment occurred.

Wrongful Death

A representative of the estate of a person who died as a result of medical malpractice may bring a lawsuit for wrongful death. The spouse, siblings, relatives, and other members of the decedent’s estate may also bring a suit for damages arising from a wrongful death. Wrongful death claims are brought for death caused by surgical errors, medication errors, diagnosis errors, bacterial infections, and birth injuries and defects, among others. While a suit for wrongful death arises from the common law, many states have now enacted legislation to govern litigation in wrongful death actions. Some states allow the spouse and surviving family members to claim damages for both economic and noneconomic losses such as love, care, comfort, supervision, financial support, guidance, household support, and society.

Statutes of Limitations
As in other negligence actions, a statute of limitations applies to limit the amount of time plaintiffs have to bring a medical malpractice suit. For those injuries not resulting in death, the statute begins to run at the time of the injury. For injuries resulting in death, the statute begins to run at death. It is important to know the statute of limitations that applies in the state in which the litigation is commenced.