What Constitutes as Medical Malpractice?

Disagreeing with your doctor and not liking the outcome does not always mean medical malpractice. There are numbers of ways a treatment or surgery can go wrong. Besides, these medical professionals are still human anyway, so it is plausible that they might make human errors from time to time.

In fact, a study has shown that one in three clinicians will be sued at least once in their career. With that, these errors on medical malpractice claims might be more common than you think because it is never easy to determine whether these are real medical malpractice or not.

That said, we have created this guide to help you better understand what constitutes medical malpractice and how you can spot them.

Elements of a Medical Malpractice

To successfully file a medical malpractice lawsuit, you, with the help of your lawyer, need to prove these four elements.


The first test is to prove whether the healthcare worker’s act (or omission) causes a poor medical outcome. You need to prove with certainty that you received a below-standard service or care.  

But, it is worth noting that proving so is not that easy. As we have mentioned earlier, some complications might arise and these same complications might just be accepted as a common risk in every treatment or surgery. Therefore, proving within a reasonable degree of certainty that malpractice happened can be difficult.

For instance, orthopedic injury or fractures even when treated properly still displays significant residual problems. Accusations like “failing to provide proper treatment, leading to unfavorable results” do not truly hold water in court. You need to provide further evidence that you receive an improper or misaligned treatment and that the negative outcome was in fact caused by your surgeon. Otherwise, the court would simply see your case as a natural risk and unfortunate side effect of the surgery.

In simple terms, you need to establish and prove that the healthcare professional’s mistake is the one that truly caused your poor medical outcome.

Duty to the Patient

Your claim might be derailed if you fail to prove that the doctor is accountable and has a responsibility to treat you. That said, you need to prove that a doctor-patient relationship exists at the alleged time of the medical malpractice.

This means that you need evidence that you voluntarily entered an agreement, consenting your doctor to treat you. Sometimes, documents such as medical records are enough to prove it.

But, if in case your doctor is able to prove that the relationship was terminated prior to the alleged date of the medical malpractice, then your claim might not be valid.

Other than that, there are also cases where you need to prove that doctor was in fact covering your treatment on behalf of their colleague. Minor details like these are important and you need further documents and statements to prove it.

Negligence or breach of duty

Proving negligence can be a bit messy and you need substantial evidence that your medical service provider did breach his/her duty. Even the very definition of medical negligence alone is hard to understand:

“A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.  The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one’s previous conduct).”

Cornell Law School

To help you better understand what constitutes negligence, let us very basically define negligence.

In simple terms, negligence is when your health care provider acted and provided you treatment that is below the “standard of care.’ The “standard of care” is a generally accepted level of care, skill, and treatment that your healthcare provider can offer.

For example, performing surgeries in a non-sterile environment is obviously below the “standard of care” for the community. Hence, you can file a medical malpractice claim if the surgery leads you to contract severe infection due to your surgeons’ negligence or breach of duty.

Here is a simple equation to help you determine whether it is medical malpractice or not.

B < PL

The equation above simply means that if the burden of taking precautions (B) is less than the probability (P) and resulting (L) injury, then your doctor did not do enough to treat you. He/she is considered liable for your injury.

But, again, it bears repeating that surgeries are often associated with risks and/or delay residual problems. With that, you should not be quick to judge and immediately brand every unfavorable outcome from surgeries as medical malpractice.  

Always be more discerning, keep all your medical records, and try to get a second opinion first. This way, you would save the hassle of filing unnecessary medical malpractice claims.

Note: Keep in mind that states vary when it comes to determining the standards of care. Be sure to check with your local authority or consult with your lawyer.


As with any type of lawsuit, the plaintiff (or patient) can also recover damages from his/her medical service provider. These recoveries can range from medical bills to damages for death.

Here are the recoverable economic and non economic damages in a medical malpractice case listed by Atty. George Coppolo published at the Connecticut General Assembly website:

Economic Damages

Medical Care and Expenses

To recover these damages, you need to prove that all the expenses were necessary and caused by your medical service provider.

Loss of Earnings or Earning Capacity

For cases like this, you need to prove that your medical service provider’s negligence cost you your job and prevented you from receiving any earnings.

Loss of Earning Capacity

Slightly similar to the one mentioned above, but in this case, you need to prove that your medical service provider’s negligence will cost you your future jobs and hinder your capability to earn in the future.

Noneconomic Damages

For noneconomic damages, jurors can award you a fair, just, and reasonable sum for your physical, mental, and emotional suffering.

Mental Distress and Suffering

An example of mental distress is the fear of imminent death caused by the medical service provider’s negligence.

Loss of the Ability to Enjoy Life’s Pleasures

The jury may consider the length of time you were or will be disabled from enjoying the activities you used to like.

Permanent Impairment or Loss of Function

Taking into account your life expectancy, the jury would determine the compensation for your permanent injury.


The jury may consider any disfigurement such as scaring.

Pre-existing Condition

The jury may consider the aggravation of your pre-existing conditions due to medical malpractice. However, it is worth noting that the jury might not consider your pre-existing condition itself.

Damages for Death

Besides damages for wrongful death, the jury may also consider the decedent’s dependence on the deceased and capacity to earn money.

Loss of Consortium

Like the lawsuit filed by Edward and Patricia Hopson in 1978, the jury may also consider damages such as deprivation of love, affection, and consortium from your spouse due to medical malpractice.

To settle or go to trial?

Before asking this question, it is important that you are certain that your claim is valid and would not be dismissed by the court. Doing this would save you a lot of time, money, and resources. Besides, 72% of medical malpractice lawsuits are sometimes dropped, denied, or dismissed. These are mainly because many patients are easily triggered to file a lawsuit when their expectations are not met, they are unsatisfied and angry about the alleged “negative” outcome, the treatment was not adequately explained to them, they were pressured by other people, and among others.

While these feelings are certainly valid and treatment outcomes may tend to vary, it still would not hold up in court if you do not have any sufficient document and evidence.

But if in case you have sufficient evidence and your legal advisor has validated all your claims, then there is no harm in seeking restitution and filing a medical malpractice lawsuit.

If you are caught in a crossroad and ultimately decide to settle, then that is perfectly fine as well. It is up to you and your legal advisor to decide whether the settlement would work to your advantage or not.

Deciding whether to settle or go to trial is not an easy feat. You need to have a full discussion with your medical malpractice lawyer as well as discuss its pros and cons.

Avoiding Medical Malpractice

Now that you fully understand what medical malpractice is and your responsibilities as a patient, let us now look at the responsibility of your medical service provider. Here are a few tips and guidelines from the NCBI Pubmed archive:

Patient Care and Diagnosis

  • Not many patients would file a malpractice case if their physicians would only show compassion to them. That said, health care professionals should show that they care and empathize with the patient. 
  • Be responsive and try to avoid delays as much as possible. 
  • Know and follow the standards of care for the community.
  • If the therapy does not work, respond quickly and think of other possible options. For instance, you can get a second opinion, opt for a different therapy, or refer the patient to a specialist. 
  • As much as possible, interpret and discuss each test result with your patients directly. 


  • Doctors are not perfect and do not know everything. That said, you should get aid from a consultant if needed. 
  • Explain your patient’s history to the consultant, be as detailed as possible. 
  • Gather insights and try to look at your patient’s case from a different perspective. 
  • If you are a supervising physician, keep your midlevel providers (MLP) in check. 


  • Communicate well and try to empathize with your patient
  • Talk directly to consultants to avoid miscommunication
  • If other physician is covering for your time, then you should be thorough when you turn over medical records and history. 


  • Familiarize yourself with the electronic medical records (EMR) documentation process. 
  • Always do your charts on time. 
  • Hire medical scribes for efficiency and better documentation
  • Try to document everything in detail

Continuing Medical Education

  • Remember that support is vital when it comes to medical malpractice cases. That said, be transparent and always treat your coworkers with respect.
  • Keep your knowledge and skills up to date. Do not let board certification lapse.
  • Be acquitted with the regulations and limitations set by the HIPAA. For instance, information posted on social media should not be used alongside patient care. 
  •  Never change a medical record after the fact. 

Read the entire guidelines here


All in all, everyone has a role to play. Even though healthcare professionals are liable for their actions, patients should also be more discerning on what constitutes as medical malpractice.

Because at the end of the day, these medical malpractices can jeopardize and affect our healthcare industry. With that, we should arm ourselves with the right knowledge so that we can avoid these errors in the future and ultimately minimize medical malpractice in our healthcare system.