How to Identify Medical MalpracticePublished on October 16, 2023
Doctors and other medical professionals are tasked with the job of performing highly skilled, life-saving work. But what happens when a mistake is made that leaves a patient with severe and potentially fatal injuries? Medical errors can happen to even the most experienced doctor and it is important to understand what rights you have as a patient. Being able to identify if you have a case of medical malpractice can help aid the financial burden and stress as a result of sustaining an injury from a medical error.
What is medical malpractice?
Medical malpractice refers to the legal concept in which a healthcare provider, such as a doctor, nurse, or hospital, breaches the standard of care expected in their profession, resulting in harm or injury to a patient.
Medical malpractice cases typically involve negligence, meaning there was a failure to act with the level of care, skill, or judgment that a competent healthcare professional would exercise in the same situation. There are many forms of medical malpractice and certain standards have to be met to be considered an act of medical malpractice. For these reasons, it’s not always easy to identify if your case can be tried as medical malpractice.
Medical malpractice vs. negligence
Medical malpractice and negligence are related concepts within the context of healthcare, but they have distinct differences. Medical malpractice refers to the failure of a healthcare professional to provide treatment or care that meets the accepted standard of practice, resulting in harm or injury to a patient. It involves the breach of a duty of care owed by the healthcare provider to the patient.
Negligence, on the other hand, is a broader legal concept that encompasses any conduct that falls below the standard of care expected of a reasonable person in similar circumstances. While medical malpractice is a specific form of negligence related to healthcare, negligence can occur in various other fields.
Consider the following examples:
- Medical malpractice: A surgeon fails to remove a surgical instrument from a patient’s body after a procedure, leading to infection and further complications. The surgeon’s failure to meet the standard of care expected in the medical profession constitutes medical malpractice.
- Negligence (non-medical): A driver fails to obey traffic laws and causes an accident, resulting in injuries to other drivers involved. In this case, the driver’s failure to adhere to the standard of care expected of a reasonable person while operating a vehicle constitutes negligence, but not medical malpractice.
How common is medical malpractice?
Determining the exact prevalence of medical malpractice in the United States is challenging due to various factors, including underreporting, settlement agreements, and the complex nature of healthcare. However, medical malpractice does occur, and it can have serious consequences for patients. While not all medical errors result in malpractice claims, medical malpractice is a significant concern in the United States that warrants attention and ongoing efforts to improve patient safety and accountability within the healthcare system.
Medical malpractice statistics
- A recent study estimates that more than 250,000 people die annually from medical error across the United States.
- Fatal medical errors are the third leading cause of death in the United States.
- Harvard estimates that 1.2 million people are harmed by medical errors each year.
- The New England Journal of Medicine reports that almost a quarter of hospitalized patients experience harm.
10 types of medical malpractice
While healthcare providers strive to provide safe and effective treatment, medical errors can occur, leading to devastating consequences. Understanding the different types of medical malpractice is essential to recognize potential risks and ensure patient safety. Explore the following ten common types of medical malpractice, ranging from misdiagnosis to surgical errors, and birth injuries.
Misdiagnosis can be considered a form of medical malpractice when it involves a healthcare provider’s failure to accurately identify a patient’s medical condition. When a healthcare professional fails to conduct a thorough examination, order appropriate tests, or adequately interpret test results, it can lead to incorrect or delayed treatment. This can cause harm or further complications for the patient.
In cases where a reasonable and competent medical professional would have made the correct diagnosis based on the available information, the misdiagnosis can be seen as a breach of the standard of care. This failure to meet the expected standard of care can result in legal liability for the healthcare provider, as it constitutes negligence and can be the basis for a medical malpractice claim.
Why is cancer commonly misdiagnosed?
Diagnosing cancer is typically done by analyzing the symptoms a person experiences but there are numerous diseases that mimic the impact and appearance of cancer. One of the leading causes of misdiagnosis for cancer is seen when medical professionals rely on symptoms and a general lack of knowledge regarding the cause of symptoms a patient experiences.
For example, the symptoms exerted between endometriosis and ovarian cancer are nearly identical, which can lead doctors to a wrongful diagnosis of cancer. It is more common for doctors to misdiagnose cancer when they are unable to identify significant evidence in support of one condition over the other.
What types of cancer are most commonly misdiagnosed?
Misdiagnoses are common due to the fact that certain forms of cancer occur more frequently in patients. Although any cancer can be misdiagnosed, there are certain types of cancer that are misdiagnosed in patients more often.
- Breast cancer. This condition can be misdiagnosed in patients as a non-cancerous cyst or a collection of liquids in the tissue. Inflammatory breast cancer can also be misdiagnosed as mastitis or fibrocystic breast disease.
- Colorectal cancer. This type of cancer involves a patient’s lower intestine and rectum and is commonly mistaken for IBD, IBS, or uncreative colitis. It can also be misdiagnosed as hemorrhoids.
- Pancreatic cancer. Considering that this form of cancer often causes digestive tract symptoms, patients are often misdiagnosed with having IBS, gallstones, or even pancreatitis. In some cases, patients are diagnosed as being diabetic.
- Lung cancer. Symptoms include shortness of breath, hoarse-sounding voice, coughing, and wheezing which can lead doctors to misdiagnose lung cancer as pneumonia, tuberculosis, bronchitis, pleurisy, or even asthma.
Can you sue a doctor for not detecting cancer?
Under some circumstances, patients can sue a doctor for misdiagnosing cancer. Patients may be entitled to cancer misdiagnosis settlements depending on the various factors of their case. It is crucial for those with misdiagnosed cancer to contact a medical malpractice attorney as soon as possible.
The costs of a misdiagnosed illness
Not only can a misdiagnosis have a major impact on a patient’s physical or mental health, but there is a large financial impact that patients can experience from this medical error.
When a person is diagnosed with an illness, they usually begin treatment shortly after. Depending on the medical condition, a patient can accumulate thousands of dollars in medical bills related to their treatment. By the time a doctor or patient discovers the misdiagnosis, the patient and their insurance have already acquired the costs for any testing and treatment related to the illness.
Not only are patients forced to pay the costs for treatment they don’t need, but a lot of patients who receive the wrong treatment for an illness face worsening symptoms related to their actual ailment. Consider the situation where a patient with a digestive disorder is wrongfully diagnosed with having colon cancer. This patient could experience overwhelming pain and suffering, possible ruptures in their colon, and other negative consequences that require life-long treatment as the result of not addressing the actual condition appropriately and in a time-sensitive fashion.
2. Delayed diagnosis
A delayed diagnosis describes a situation where a doctor did not adequately diagnose a condition for a patient as soon as it was discovered. In order for a case to be considered a delayed diagnosis, a patient must prove that their doctor and patient relationship did exist, the doctor acted negligently, inadequately, and did not give a timely diagnosis of a health condition, and, as a result of such delay, the patient experienced physical or mental harm.
How does a delayed diagnosis impact a patient?
With all the advancements and medical options available to improve the quality of life for patients whose conditions are discovered early on, it can be extremely frustrating when doctors or other health professionals delay diagnosing an ailment.
Unfortunately, a delayed diagnosis can have profoundly negative consequences for patients. This is especially true for patients who suffer from life-threatening illnesses. Depending on the type of illness a patient suffers from, a delayed diagnosis can lead to worsening symptoms and even death. Patients who are diagnosed early on have a far better chance of receiving adequate treatment that can help them overcome an illness.
Examples of delayed diagnosis
Delayed diagnosis of illnesses can occur for a variety of reasons. Some of the leading causes for delays are when medical professionals lose paperwork, they do not order the proper testing, they do not refer the patient to an appropriate specialist, or when they misread x-rays, test results, or medical charts. Additionally, there are numerous cases where doctors fill out medical charts improperly and only discover the error weeks or months later.
What is not considered a delayed diagnosis?
Patients who are properly diagnosed with an illness as soon as it is discovered cannot be said to have experienced a delayed diagnosis. Unfortunately, even after a condition is diagnosed, it can continue to progress rapidly. This negative progression can have a detrimental impact on a patient’s ability to receive adequate and thorough treatment for their condition.
3. Failure to diagnose
When a healthcare provider neglects to recognize and diagnose a patient’s condition in a timely and accurate manner, it can lead to delayed treatment, progression of the illness, and potential harm to the patient. The failure to diagnose can stem from various factors, such as inadequate examination, misinterpretation of symptoms, or negligence in ordering and interpreting diagnostic tests. In such cases, the healthcare provider may be held liable for medical malpractice due to the breach of the expected standard of care.
For example, when a woman visits her gynecologist with symptoms of pelvic pain and abnormal bleeding, her gynecologist attributes the symptoms to normal menstrual fluctuations and does not conduct further examinations or screenings. Subsequently, the woman is diagnosed with advanced cervical cancer, which could have been detected and treated at an earlier stage. In this scenario, the gynecologist’s failure to diagnose the cancer in a timely manner could be deemed medical malpractice.
4. Surgical errors
Surgeons and their supporting healthcare teams are expected to adhere to a high standard of care, following established protocols and guidelines to ensure patient safety. However, surgical errors can occur due to various factors, including human error, lack of communication, fatigue, inadequate preoperative planning, or equipment malfunctions.
Examples of surgical errors that may constitute medical malpractice include operating on the wrong body part, performing the wrong procedure, leaving surgical instruments or foreign objects inside the patient, damaging adjacent organs or tissues, or administering improper anesthesia. These errors can lead to significant physical and emotional consequences for the patient and may result in the healthcare provider being held legally accountable for their actions.
How doctor fatigue and impairment contributes to surgical errors
Sleep deprivation is an expected consequence of working in the medical field due to excessive hours. Not only can it have a devastating impact on the life and wellbeing of the doctor, but it can impact the quality of care they provide for their patients. To function well, it is imperative that doctors obtain adequate sleep. Fatigue from lack of sleep can cause a variety of symptoms such as cognitive decline, altered mood, and impaired motor skills.
Physicians who are impaired due to drugs and alcohol are more likely to make life threatening medical mistakes while caring for their patients. If a physician is performing surgery, they may have problems focusing on the task at hand. If they are trying to diagnose a problem, they may be unable to recognize symptoms and make an accurate diagnosis.
In any case, if a patient suffers injuries due to the actions of a physician who is impaired, it is imperative that they contact a personal injury attorney as soon as possible.
Warning signs of an impaired physician
While there are laws in place requiring that physicians report any colleague who they suspect to be under the influence of drugs or alcohol, physicians under the influence continue to fall through the cracks and treat patients while under the influence.
Here are signs that you can look for to protect you and your family members from being treated by a physician that may be under the influence:
- Decline in personal hygiene
- Abandonment of professional duties
- Sleep deprivation or extreme fatigue
- Not responding to pages, phone calls, or other professional requirements
- Decrease interest or concern in the wellbeing or improvement of patients
- Claiming unspecified personal or family problems as the reason for their decline/lack of focus
- Lack of bedside manner
- Missed appointments
- Odd working hours and unexplained absences
- Smell of alcohol
- Slurred speech
Who can be held liable for medical malpractice that occurs due to physician impairment?
There are many parties beyond the actual physician who can be held responsible for any loss or damage done from being treated by a doctor who was under the influence of drugs or alcohol. These liable parties can include:
- The impaired doctor who treated you
- The hospital where the doctor is employed
- Any party responsible for the doctor’s background check or screening
- Colleagues or supervisors who know or suspected impairment but failed to act
5. Incorrect treatment
When healthcare providers fail to provide appropriate and evidence-based treatments, it can lead to patient harm, worsened symptoms, or even fatal consequences. Medical professionals have a duty to assess a patient’s condition accurately, consider relevant medical history, and prescribe the most suitable treatment based on established protocols and best practices. Deviating from these standards, whether due to negligence, lack of knowledge, or inadequate assessment, can constitute a breach of the expected standard of care and be classified as medical malpractice.
Examples may include prescribing the wrong medication, administering an incorrect dosage, employing an outdated or ineffective treatment method, or disregarding contraindications or potential adverse reactions. The consequences of administering the wrong treatment can be severe, underscoring the need for healthcare providers to exercise diligence and expertise when determining and implementing appropriate treatment plans.
6. Birth injuries
There are many instances in which newborn babies are born with complications. Sometimes, these problems occur simply as the result of an undiagnosed birth defect. In other other instances, complications can be a result of a birth injury that occurred during labor or delivery. Obstetricians, nurses, and other medical professionals have a responsibility to ensure the safety and well-being of both the mother and the newborn during labor and delivery. When they deviate from accepted medical practices or fail to recognize and respond appropriately to complications, it can lead to preventable birth injuries.
For example, if a healthcare provider fails to monitor fetal distress during labor, delays necessary interventions such as a timely cesarean section, or improperly uses forceps or vacuum extraction, it can result in birth injuries to the infant. These injuries may include cerebral palsy, brain damage, fractures, or other physical traumas. Similarly, if a healthcare provider fails to identify and respond to maternal complications such as excessive bleeding or infections, it can lead to harm or even death for the mother. In such cases, the failure to provide adequate care during childbirth can be considered medical malpractice, holding the responsible healthcare providers liable for the injuries caused.
What is considered a birth injury?
It is critical not to confuse a birth defect with a birth injury. A birth defect is a health problem that is generally based on the child’s DNA. Down syndrome, cleft palate, and even heart murmurs are some common birth defects that can be seen in a newborn.
Birth injuries, on the other hand, are often preventable health problems that occur due to negligence that occurs during labor. According to a study, an average of 7 out of 1,000 babies sustain a birth injury. This accounts for 3 birth injuries occurring every hour, 76 per day, 538 per week, 2,333 per month, and over 28,000 per year in the United States alone.
7. Prescription drug errors
The incorrect supply of medications is one of the most common forms of medical malpractice in the United States. There are a number of ways in which a medical professional can be considered negligent when prescribing prescription medication. Some of the most common forms of negligence are present when:
- Patients are given or prescribed the wrong medications
- Patients receive medication that is intended for another patient
- Patients receive medication that is the wrong dosage
- Patients receive medication unnecessarily due to a misdiagnosis
- The medical equipment patients use fails and lead to the incorrect dosing of medication
- The medication labels do not warn patients of the potential side effects they may experience
- Medical professionals fail to catch or recognize harmful drug interactions that may occur
- When medical professionals fail to catch allergic reactions patients may experience
It is crucial to note that any nurse, doctor, or pharmacist can be held liable for negligent medication errors and these errors can occur in any location. Whether a patient is in surgery, at a nursing facility, or simply picking up a prescription from the pharmacy, the chances of them suffering from a medication error is always prevalent.
8. Anesthesia errors
Anesthesiologists and anesthesia providers play a critical role in ensuring patient safety and comfort during surgical procedures. They are responsible for administering the appropriate type and dosage of anesthesia, monitoring vital signs, managing pain, and anticipating and managing potential risks.
However, when anesthesia errors occur, they can have serious consequences for the patient. Examples of anesthesia errors that may be classified as medical malpractice include administering an incorrect dosage of anesthesia, failing to consider patient allergies or medical conditions that may affect anesthesia response, neglecting to monitor vital signs adequately during surgery, or improper intubation procedures leading to oxygen deprivation. Such errors can result in complications, prolonged recovery time, brain damage, cardiac arrest, or even death. As healthcare providers have a duty to deliver safe and competent anesthesia care, negligence or deviations from the standard of care in administering anesthesia can give rise to anesthesia malpractice claims.
9. Failure to prevent or treat infections
Healthcare providers have a responsibility to follow infection control protocols and take necessary precautions to minimize the risk of infections in healthcare settings. When healthcare professionals neglect proper hygiene practices, fail to maintain sanitary working conditions, or overlook infections in patients, it can lead to the spread of infections and harm to patients.
For example, if a hospital fails to maintain proper sanitation procedures, leading to contaminated medical equipment or unsanitary environments, it can contribute to the transmission of healthcare-associated infections (HAIs) such as Methicillin-resistant Staphylococcus aureus (MRSA) or Clostridium difficile (C. difficile). Similarly, if healthcare providers disregard or overlook signs of infection in a patient, leading to delayed or inadequate treatment, it can exacerbate the condition and potentially result in serious complications. In both cases, the failure to prevent or treat infections can be considered medical malpractice due to the breach of the duty to provide a safe and infection-free environment for patients.
10. Failure to obtain informed consent
Obtaining informed consent from a patient means that a caregiver has provided the patient with all necessary information regarding the proposed treatment, including potential risks, benefits, alternative options, and expected outcomes. It is the process of ensuring that patients have a clear understanding of their medical condition, the recommended treatment plan, and the potential consequences before they can make an informed decision about their healthcare.
Informed consent is an essential ethical and legal principle that respects patients’ autonomy, promotes transparency in medical decision-making, and fosters a trusting relationship between patients and healthcare providers.
Failing to obtain informed consent from a patient can constitute medical malpractice as it infringes upon the patient’s rights and disregards their autonomy in making healthcare decisions. If a caregiver proceeds with a medical intervention without obtaining proper consent or fails to adequately disclose crucial information, it can be considered a violation of the patient’s rights and a breach of the caregiver’s duty of care. In such cases, patients may suffer unexpected complications, physical or emotional harm, or undergo treatments they would not have consented to if properly informed.
How to prove medical malpractice
When a patient has harm done to them by a negligent and reckless medical professional who does not competently perform their duties to keep the patient safe, that patient can bring a medical malpractice suit against the physician. For the most part, the victim must prove that medical malpractice occurred and doing so requires:
- Proving a doctor-patient relationship occurred in which the doctor treated you directly
- The doctor caused you to harm due to negligence, and you would not of sustained such harm by a competent doctor in the same situation
- The harm that you were caused was directly related to the negligent treatment you received from the doctor
- Very specific damages resulted, such as physical pain, mental distress, additional medical bills pertaining to the harm, lost compensation from the medical harm
Medical malpractice claims can result in payments from the responsible parties insurance for the damages that incurred. Also, if a doctor was under the influence while providing treatment they can lose their job, their medical license, and their reputation if it is proven that they were engaged in consuming illegal drugs or drinking alcohol while working.
How a medical malpractice attorney can help you
If you have suffered through a medical error at the hands of a trusted healthcare professional, chances are you will face overwhelming negative consequences to your physical and mental well being. It is crucial that you are able to get the care and treatment you need for any damage done. It is crucial that you are not held liable for costs related to treatment for illnesses that you do not have. It is imperative that you get justice for the traumatic and overwhelming experience you’ve had related to your misdiagnosis.
For over 84-years, malpractice attorneys at McIntyre Law have helped countless patients get the justice and compensation they deserve. Our personal injury attorneys understand the difficulties victims face when dealing with a form of medical malpractice, which is why we work diligently to ensure their health and lives are protected. Contact our law firm today to see how we can help you.