Medical Malpractice FAQs (Updated) | Morris James LLP

Medical malpractice, also known as medical negligence, occurs when a hospital, doctor, or other health care professional fails to comply with the standard of care and causes an injury to a patient. The standard of care refers to the requirement that a medical professional act as a reasonably prudent and diligent medical professional.

Not all failures to comply with the standard of care (also called a “breach” or “violation” of the standard of care) equate with medical negligence. Nor do all injuries to patients mean that a medical professional breached the standard of care. Rather, to prove that a patient’s injuries or harms were due to a healthcare professional’s medical negligence, the person must prove that:

1. The healthcare provider owed a professional duty to the patient;
2. The healthcare provider breached that duty (a breach of the standard of care);
3. The patient’s injury was caused by that healthcare provider’s breach; and
4. The patient suffered damages as a result of that breach.

To prove medical malpractice, the injured party must present medical expert testimony that there was a standard of care breach that caused damages. Even before a claim is filed, the injured party needs to retain a qualified medical expert who can support the claim. Thus, to pursue a medical negligence claim successfully, it is critical to hire attorneys who can retain competent and qualified experts.

A statute of limitations is a law that limits how long a person has to file a lawsuit. In Delaware, in most situations, an injured person has two years from the date of the healthcare provider’s negligence to file a medical malpractice claim. There are situations where the timeframe may be extended, but those are rare. To make sure your claim is filed timely, it is important to speak with an attorney as soon as possible.

Will my case go to trial?

Sometimes, the injured party and the healthcare providers are able to resolve their matter before trial. If, however, the defendant’s healthcare providers refuse to pay a fair amount, our team recommends that we go to trial to receive fair compensation. The attorneys at Morris James have tried many cases to verdict and know how to fight for their client’s right to fair compensation.

How is medical malpractice pain and suffering calculated?

Although every state is slightly different, many states ask a jury to evaluate an injured party’s pain and suffering by considering a number of factors. Those include the injured party’s physical pain caused by the injury itself, any discomfort resulting from necessary medical treatment, mental anguish, and other emotional stressors from the injury. A jury can also consider disfigurement and loss of ability to enjoy life’s pleasures. The jury may also consider the costs of any medical care incurred, the costs associated with future treatment that is needed as a result of the injuries sustained, and lost earnings due to the inability to work from the injuries.

Because every case is variable, awards can vary widely, even in similar cases. The medical malpractice attorneys at Morris James are keenly aware of how juries calculate damages awards given their experience, and use this knowledge to leverage their clients’ cases to obtain the best possible outcomes, whether through settlement or at trial.

The lawyers at Morris James have litigated almost every type of medical malpractice claim. Some common types of malpractice claims include:

Pregnancy care and labor & delivery management. The birth of one’s child is one of the most exciting and wonderful experiences in a person’s life. Unfortunately, this event can turn horrific if the medical providers involved do not act appropriately to monitor the mother and baby. If the healthcare providers fail to treat the mother or child appropriately during her pregnancy or her labor and delivery, that can lead to catastrophic injuries to both the mother, father, and baby. Some of these injuries include physical injuries to the baby’s head, arms, or shoulders and can include devastating neurologic injuries like brain bleeds and cerebral palsy – injuries that a patient and family will need to face for the entirety of their lives.

Hospital negligence. Patients go to a hospital for all types of care, including emergency room care, surgery, births, and other issues. While at a hospital, patients can be treated by numerous healthcare providers, including doctors, physician assistants, nurse practitioners, and nurses. When these providers breach the standard of care and harm a patient, regardless of the type of care, the hospital may be responsible for those injuries.

Failure to diagnose a medical condition. If the healthcare provider acted negligently in failing to identify, diagnose, and treat the medical condition, and if that delay caused harm, the treating healthcare provider might be liable for medical malpractice. In certain cases, such as cancer, the medical condition leading to harm can be severe.

Failure to follow-up. There are times when a patient expects a healthcare provider, like a doctor, to follow up on a test, a visit, or a study. This typically happens after a patient has blood drawn for lab tests, has a biopsy performed, has an imaging study like an x-ray or other scan, or has an ongoing medical condition. If the healthcare provider doesn’t follow up when he or she is supposed to do so, and if that failure to follow-up leads to a delay in a medical diagnosis, it can cause harm to the patient. In that situation, the failure to follow-up may be a basis for a medical malpractice claim.

Failure to monitor. Oftentimes, after a patient has a medical procedure, the patient is admitted to the hospital or another medical facility so that the medical staff, including doctors and nurses, can monitor the patient to make sure that there are no new problems that develop. Sometimes, that monitoring is done at the patient’s home by trained medical staff. If the medical providers caring for the patient do not monitor the patient correctly, they can sometimes miss important medical issues, and that can lead to harm. If the medical providers did not monitor the patient correctly, and this failure caused harm, the patient or the patient’s family may have a potential medical malpractice claim.

Surgical errors. Despite the technological advances and techniques that surgeons have at their disposal, there may still be surgical errors. Sometimes, those are expected, but other times, they may be due to the surgeon making unreasonable errors. If a surgeon makes an unreasonable error that causes harm, that can be the basis of medical malpractice. Some examples of surgical errors that might be malpractice include puncturing internal organs, injuring blood vessels, operating on the wrong body part, or leaving surgical instruments inside the body.

Prescription errors. Healthcare providers may make mistakes with medication for patients. These errors include a doctor or nurse practitioner writing an incorrect dosage on a prescription, issuing a prescription that should never have been given under the circumstances, a nurse administering an incorrect amount of medication, or medical equipment giving the patient the wrong dose of medication. When that medical error causes harm, that may be the basis for a medical malpractice claim.