The fear of a medical malpractice lawsuit is an ever-present threat for medical care providers.
In fact, 45.2% of physicians aged 55 and over have been sued, according to the American Medical Association. And the odds of a claim are even higher in certain high-risk specialties. Nearly three out of four OB-GYNs and general surgeons report that they’ve been sued at least once.
Many medical malpractice lawsuits are unsuccessful. AMA data shows that an estimated 68% of closed claims were dropped, dismissed, or withdrawn. In total, 88% of cases decided at trial were also won by the defendant.
However, this does not make malpractice lawsuits any less traumatic for providers. A lawsuit can create reputational and financial risk, can take months or even years to resolve, and can result in higher future medical malpractice premiums.
Still, knowing what to expect can help providers feel more prepared in case they do face a malpractice claim. This guide will offer insight into key questions, like what are malpractice lawsuits, how these cases proceed, and what factors affect a care provider’s civil liability.
A medical malpractice lawsuit is a legal claim alleging that a healthcare provider failed to meet the professional standard of care. The lawsuit also alleges that the provider’s failure caused patient harm.
In most cases, plaintiffs must establish four elements to pursue a successful medical malpractice claim:
Providers can only be held responsible for failing to meet the standard of care when treating patients if they have an obligation to them. The duty of care arises from the doctor/patient relationship. However, the definition of a doctor-patient relationship may be broader than some physicians expect.
For example, in Adams v. Via Christi Regional Medical Center, a physician was found liable after a patient died of a ruptured ectopic pregnancy. The physician was no longer providing obstetric care, was not the patient’s doctor, did not examine the patient, and never spoke to the patient. However, the court held that he established a “patient-physician” relationship when he took a phone call from the patient’s mother and offered advice.
By contrast, in the Estate of Kundert v. Illinois Valley Community Hospital, the court found a provider had not established a patient-physician relationship despite taking a phone call from a mother asking about high fevers in her newborn. The provider said no immediate medical attention was needed and the baby should be given Tylenol and a tepid bath.
Unfortunately, the baby died of bacterial meningitis. However, because the provider told the mother that the hospital didn’t have equipment or personnel to provide medical service to infants, the court found that the provider’s opinion was informal advice. The statement about the hospital’s lack of ability to provide care was a refusal to initiate the doctor/patient relationship.
Providers should consider carefully whether they are forming a relationship with a patient when providing medical advice. Tools like a patient dismissal letter can also help providers make clear that there is no longer a duty of care to give rise to legal liability.
Breach of the standard of care is the second key element of a malpractice claim.
Once a plaintiff establishes the provider had a duty, the plaintiff must show a breach of duty. Generally, this means demonstrating that the defendant failed to exercise the degree of care, skill, and learning expected of a reasonably competent physician in the same specialty under similar circumstances.
Early malpractice claims evaluated doctors based on the locality rule, with physicians expected to have the same degree of knowledge, skill, and care used by physicians in the same field who were practicing in a similar locality. Small v. Howard, an 1880 medical malpractice case in Massachusetts, is often cited as the origin of this rule.
However, courts began to shift away from this in landmark cases like Brune v. Belinkoff, as advancements in communication and medical education mean that there’s no longer a reason to hold rural doctors to a lesser standard. Instead, the court in Brune found that a provider should be held to the same standard of care as the average professional within the same specialty.
This is largely the rule today across the United States, particularly for specialists, although some jurisdictions continue to consider local circumstances. Cases like Helling v. Carey also expanded the potential for physician liability by holding that strict adherence to a medical standard or custom is not, by itself, enough to protect a physician from being held civilly liable for losses. Healthcare providers often defend these claims by arguing they met the standard of care.
In some cases, the defendant’s conduct is so clearly negligent that there is no need to present expert witnesses or extensive evidence, but in most others, testimony from healthcare professionals can clarify whether standard care was met and help prove negligence tied to a healthcare provider's negligence by a doctor, nurse, pharmacist, or other medical professional. Leaving a surgical instrument inside a patient or operating on the wrong patient is an example. In these cases, the negligent act speaks for itself.
The legal doctrine that makes a defendant liable in these situations is actually called res ipsa loquitur, which is Latin for the thing speaks for itself.
Not all patient complaints or poor outcomes result from malpractice, and not every medical error results in a viable claim. A plaintiff must prove causation. This means demonstrating that the provider's negligence was the cause of harm.
Causation is complicated because it's often difficult to determine if provider failure or an underlying condition caused the damage. Mitchell v. Gonzales was an influential case in establishing the standard, with the court ruling that a defendant can be liable if negligence was a substantial factor in causing an injury, even if there were other contributing causes.
Today, many jurisdictions continue to require proof of but-for causation, but also recognize substantial-factor causation in cases involving multiple contributing causes of damage.
Courts don’t always require proof that the plaintiff’s outcome would have been materially different if the negligence hadn’t occurred, as cases like Matsuyama v. Birnbaum and Herskovits v. Group Health Cooperative established the loss of a chance doctrine. This doctrine now applies in many jurisdictions.
Generally speaking, in those jurisdictions that adopt the loss of chance doctrine, if a provider’s negligence resulted in the loss of chance of a better outcome, then that can satisfy the causation requirement and liability can attach. A good example of when loss of chance applies is a case where the claim claims a delayed cancer diagnosis. Rather than prove that but for the negligence, the plaintiff would have survived, the standard becomes did the negligence create a reduced chance of survival.
While these rulings have made it easier for plaintiffs to demonstrate causation, the fact remains that medical experts are generally needed to evaluate causation issues, and expert witnesses can significantly impact lawsuit outcomes. On the federal level, Daubert v. Merrell Dow Pharmaceuticals, Inc. established the standard that testimony from medical experts must be reliable and scientifically grounded when they evaluate whether negligence caused the injury. Many states have adopted similar rules.
There are also rules in place protecting physicians, including apology laws in certain jurisdictions that prevent plaintiffs from introducing into evidence at trial statements made by doctors apologizing for adverse patient outcomes.
Finally, a plaintiff in a malpractice case must demonstrate legally recognizable damages. Proving damages is critical in both a personal injury lawsuit and a wrongful death lawsuit.
Damages typically include economic and non-economic losses, including past and future medical expenses, lost wages, reduced earning power, non-economic damages such as pain and suffering, emotional distress, lost companionship, diminished quality of life, and more. Plaintiffs seek fair compensation for both financial losses and pain-related harms.
Beyond understanding the key elements of a malpractice claim, it is also helpful to understand the trial process. Most malpractice lawsuits follow a relatively predictable sequence, which is described below.
Malpractice claims begin when medical malpractice occurs and negligent care leads to an adverse event, such as an injury, severe complications, or even death that may have occurred as a result of medical care. A failure to obtain informed consent for a treatment or surgical procedure could also be an adverse event.
Not all adverse events lead to malpractice claims. However, issues like poor communication increase the risk that a patient with an adverse outcome will pursue legal action.
Many states require plaintiffs to provide notice of a claim, a certificate of merit, or a notice of intent to sue, and some require plaintiffs to notify the provider 90 days before suing. In some states, the claim must go through a medical screening panel before a lawsuit can be filed. All of these measures are intended to reduce the risk of frivolous lawsuits.
New York Civil Practice Law and Rules § 3012 is one example of a state medical malpractice law aimed at ensuring early evaluation of claims. Outside of limited exceptions, such as in res ipsa loquitur situations, the law requires a certificate to accompany the complaint confirming that a specialist was consulted and believes there is a reasonable basis for the complaint, and that the plaintiff must consult a specialist before filing in jurisdictions with this kind of screening requirement.
Other examples include New Jersey Revised Statutes § 2A:53A-27, which requires an affidavit of merit from an appropriately licensed professional, and Texas Civil Practice and Remedies Code § 74.351, which requires an expert report within 120 days of filing.
If the claim proceeds, the complaint is formally filed in court, and the medical malpractice claim begins. The physician will then be served and must immediately notify their malpractice insurance carrier to ensure that appropriate defense counsel is retained to file a prompt answer to the complaint.. If a provider does not file a timely answer, it may be possible for the plaintiff to get a default judgment.
The discovery phase comes next, providing an opportunity for the plaintiff and defendant to obtain relevant information and documents from the other party.
In most cases, the standard for discovery is fairly broad. Documents may be discoverable if they are likely to result in the discovery of admissible evidence, even if the documents themselves would not actually be admitted in a trial for a malpractice claim.
The plaintiff, defendant, and witnesses are typically required by law to respond to requests for discoverable material. Any non-privileged documents or information relevant to the subject matter must be turned over upon request. Common examples of documents include medical records, hospital billing information, clinical notes, and related papers.
Because physicians know this information will be requested in a malpractice claim, most providers practice charting with a jury in mind and take steps to carefully document when patients act against medical advice.
Depositions are a frequent part of the discovery process. The parties and any third party fact witnesses are typically deposed first, followed by the expert witnesses. During a deposition, testimony is given under oath. A court reporter will prepare a verbatim stenographic record of everything said during a deposition. Depositions are a key stage in the litigation process and often shape settlement or trial strategy.
Attorneys can raise objections during depositions, including asserting privilege to argue the provider should not have to share specific details or objecting to the form of the question. Objections related to whether evidence collected in a deposition is admissible will not usually be raised until trial.
Thorough preparation for a deposition is essential, as testimony provided in a deposition can be used later to impeach or contradict later courtroom testimony.
Over 90% of medical malpractice claims are either dismissed or they are settled outside of court. Medical malpractice settlements are common because court proceedings are resource-intensive, the costs of pursuing a trial may exceed the costs of settlement, and insurers can reduce the risk of nuclear verdicts by settling. Average settlements often range from $242,000 to $348,065. Median settlements typically range from $250,000 to $750,000.
In some cases, physicians must give consent to settle. If this is not the case, a malpractice insurer could make the unilateral decision to settle without the consent of the provider.
While some providers may prefer settlement to help ensure the compensation of a plaintiff does not exceed policy limits, others are concerned about the reputation damage and long-term financial consequences that may follow a settlement, especially in catastrophic cases involving brain damage or other long-term injuries that can produce high-value settlements exceeding $1 million.
If no settlement agreement is reached, the case may proceed to trial. Defense costs are often significantly higher when a case proceeds to trial, and the compensation paid to the plaintiff may also be greater in the event of an unfavorable verdict.
In fact, a 2019 guide to Malpractice Law and Psychiatry published by American Psychiatric Publishing reported that the average settlement for malpractice claims across all specialties is around $425,000, while the average jury verdict exceeds $1 million.
Some verdicts are later challenged through appellate review. An appeal does not retry the case; instead, it asks a higher court to review the prior legal proceedings to determine whether procedural or legal errors were made.
If an appeal is successful, the higher court overturns the initial decision and could order a new trial or send the case back to the lower court to fix the error and render a new judgment.
Both plaintiffs and defendants can appeal a malpractice claim.
There are many types of medical malpractice, and different specialties face different litigation trends. However, several categories of medical errors and mistakes consistently appear across malpractice claims.
Diagnostic errors in medicine remain one of the leading causes of malpractice allegations.
This could include a misdiagnosis or a delayed diagnosis. Any failure to diagnose could result in delayed referral to specialists, a patient’s condition worsening, or a patient receiving improper treatment. Some of the most common types of missed and delayed diagnoses include conditions such as lung cancer, where delay can dramatically worsen outcomes:
Radiology mistakes, cognitive bias, failure to effectively communicate with patients, dismissal of symptoms, and fragmented care can all result in missed or delayed diagnoses.
Malpractice lawsuits due to surgical errors and surgical mistakes during surgery may arise from severe patient harm caused by:
Medication malpractice is a common cause of lawsuits because medication errors impact an estimated 1.5 million people each year, according to AMCP. Medication-related claims may involve:
OB/GYN physicians face some of the highest malpractice exposure rates because birth injuries are a major driver of claims and can lead to especially high damages from complications involving mothers and newborns. A birth injury lawsuit may arise due to catastrophic harm, including brain damage and long-term neurological harm, caused by:
Settlements for cases resulting in death average about $380,300, which helps explain why these claims can carry substantial value.
Emergency physicians frequently face allegations tied to emergency room errors, including:
A medical professional can also be sued for failure to obtain informed consent. Examples include:
Poor documentation can significantly complicate malpractice defense, even when care itself was appropriate. Documentation-related claims can arise due to gaps in the medical record, including a failure to document:
Late chart entries or amended entries can also lead to added scrutiny.
Medical malpractice claims come at a tremendous cost not only to physicians but to society as a whole.
The public pays higher insurance premiums to cover the costs of expensive medical malpractice coverage. Some doctors also practice defensive medicine and order tests and treatment primarily to protect against liability, imposing an unnecessary and costly burden on patients and health insurers.
In fact, concerns about the financial implications of malpractice claims resulted in a tort reform movement that led to many states limiting damages in malpractice claims.
However, a quick review of medical malpractice caps by state demonstrates that plaintiffs can generally still recover hundreds of thousands of dollars in compensation.
For physicians, the cost of malpractice litigation also extends far beyond the payout to the plaintiff made by their insurance companies. Other potential consequences may include:
The National Practitioner Databank was established by Congress in 1986 to encourage the discipline of negligent practitioners and to prevent practitioners from moving locations without disclosing an adverse history of malpractice claims. Malpractice claims must be reported when payments are made by an organization on behalf of an individual to settle a written complaint.
Hospitals can review this data bank when determining whether to hire a physician or expand existing privileges. A record of malpractice claims in the NPDB can have significant professional implications.
Unfortunately, even dropped or dismissed claims can result in many of these consequences, including emotional stress, lost income, and administrative costs.
Physicians face a risk of a malpractice lawsuit until the medical malpractice statute of limitations expires, at which point any claim is time-barred. In most states, patients have a time limit of between one and three years from date of injury to take legal action and file a claim.
However, there are sometimes exceptions to the typical statute of limitations. Discovery rules are common examples. Discovery rules provide that the time deadline for pursuing a claim does not begin until the plaintiffs discover, or should reasonably have discovered, the malpractice.
For example, if a patient was misdiagnosed with cancer but did not find out until two years from the date, the time clock for pursuing a claim would begin running from the time of the discovery of the cancer misdiagnosis.
The timeline for making a claim may also be longer if the victim was a minor at the time that an alleged incident of medical negligence occurred. The statute of limitations is typically tolled until the minor reaches adulthood.
Because there is often a gap between the time that malpractice occurs and the time a plaintiff pursues a claim, it is important to ensure continuous insurance coverage, including coverage for past incidents.
When switching malpractice insurance carriers, providers must explore the different ways that a claims-made vs. occurrence policy provides coverage. Claims-made policies cover claims only if the incident occurred while the policy is active and reported while the policy is active.
Some malpractice lawsuits resolve within months, while others continue for years depending on the:
You can review our guide answering the question, “How long does a malpractice lawsuit take?” to learn more specifics about the potential time your case may take to resolve. Likewise, reading legal guidance from an experienced medical malpractice attorney can help parties understand likely timelines and delays. Long litigation timelines are one reason many physicians prioritize proactive risk management strategies.
To help prevent malpractice, a healthcare provider should:
Providers should also ensure they have comprehensive insurance coverage, as lawsuits are always a risk. Connect with Indigo now to find the right medical malpractice insurance coverage to secure your future.
Still need to know more? Here are the answers to frequently asked questions about medical malpractice lawsuits.
The timeline for filing a lawsuit depends on the medical malpractice statute of limitations in the state where the incident took place. Patients usually have one to three years to take action, but the discovery rule can sometimes result in the time clock not running until multiple years after the incident.
There’s no single answer to the question of how long does a malpractice lawsuit take? The complexity of the case and whether it is resolved in settlement, a trial, or an appeal will determine the timeline.
Plaintiffs in a medical malpractice lawsuit may recover fair compensation for both economic losses and non-economic damages based on the specific harm they suffer. Plaintiffs are compensated for medical expenses, lost wages, pain and suffering, and, in some instances, emotional distress. A lawyer can evaluate claim value based on the severity of the injury and long-term losses. However, state economic damage caps may set limits. Review medical malpractice payouts by state to determine common settlement amounts.
A medical malpractice lawsuit is one of the most stressful events a physician can face, but understanding how these claims work removes much of the uncertainty.
The encouraging reality is that most claims are dropped, dismissed, or settled, and most trials are won by the defense. Still, the financial, professional, & emotional toll is real, which is why proactive risk management matters. Thorough documentation, clear patient communication, informed consent, & continuous coverage are your strongest defenses long before a claim ever arrives.
Connect with Indigo to find malpractice coverage built for physicians like you.
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