Signs You May Have a Medical Malpractice Claim

Medical errors remain a significant patient safety concern in the United States, with thousands of medical malpractice claims filed each year involving hospitals, physicians, nurses, and other healthcare providers.

Around 17,000 medical malpractice lawsuits are filed annually in the United States, according to the American Medical Association. Additionally, approximately 29% of doctors have been sued for medical malpractice at some point in their careers. 

Medical malpractice happens when a healthcare provider does not provide the accepted standard of care that results in harming the patient. But not all bad medical results constitute malpractice. Some conditions make a malpractice case. These are missed diagnoses, surgical errors, medication mistakes, or delayed treatment. 

There are warning signs that can help patients protect their health and understand their legal options. Keep reading to learn what to do if you suspect medical malpractice.

What a Malpractice Claim Actually Requires

Just because something goes wrong medically doesn’t mean there’s necessarily a malpractice case. It’s not always possible for patients to be unharmed despite all precautions being taken on the part of the doctor. In order for an allegation to hold water, it’s necessary to prove that the practitioner breached the standard of care.

The standard of care is basically the level of care a reasonably competent provider in the same specialty would give under similar situations. Establishing whether that standard was met or breached almost always requires expert testimony. 

New Haven medical malpractice attorney Louis Rubano at Weber & Rubano, a firm that has been handling cases in the New Haven community for over 60 years, notes that a healthcare provider can be held liable for failing to diagnose a condition a reasonably competent provider would have caught, for providing treatment that fell below accepted standards, or for follow-up care that did not meet what the situation required. 

The adverse outcome alone does not establish the claim. What matters is whether a different level of care would have produced a different result.

Misdiagnosis and Delayed Diagnosis

Every year, incorrect or delayed diagnosis leads to 371,000 deaths and 424,000 cases of disability in the US, according to a study published in the BMJ Quality & Safety journal in 2023. On another paper published later in JAMA Internal Medicine in 2024, 23 percent of the patients that were moved to the ICU or had died while in the hospital had missed diagnoses. This makes diagnostic error arguably the most common type of medical malpractice. 

Cancer, infections, and vascular events, like strokes or heart attacks are the usual problems that get misread the most. And those are also the same illnesses where delayed detection brings the most irreparable harm, because treatment windows disappear once the disease passes a certain point.

To use a missed diagnosis as the basis for a malpractice claim, it has to be shown that some other reasonably competent provider, seeing the same presentation, would have reached the correct diagnosis. 

The National Practitioner Data Bank, which logs malpractice payment reports nationally, shows diagnostic errors staying near the top among the leading paid claims.

Surgical Errors

Some examples of errors that could justify claims would be performing operations on the wrong body part, the wrong person, and leaving behind surgical instruments or sponges in the body cavity during surgery.

Wrong-site and wrong-patient surgeries are usually classified as never events, which means these are errors so serious and preventable that their mere presence is treated as near-automatic proof that a standard of care breach happened. 

Most other surgical mistakes require a more case-by-case look at what the accepted approach to that particular procedure is and whether the surgeon strayed from it.

Medication Errors

Prescription and medication mistakes can end up causing some level of patient harm in both inpatient and outpatient situations. 

The most common types of medication errors are like prescribing the wrong medicine or maybe prescribing the correct drug but then using the wrong dosage, not taking into account known drug interactions, or handing out the medication to someone who has a documented allergy. 

It should be noted that in case of a pharmaceutical error, both the prescriber and the pharmacist may be liable, and the conversation inevitably turns on the question of whether each of these professionals has fulfilled the duty of care required of him by his profession when he was examining and subsequently filling the prescription.

Failure to Obtain Informed Consent

Before doing a procedure or starting a course of treatment, a provider should disclose the material risks, the options that are available, and also what the patient might expect if no treatment is pursued. 

A patient who was not properly informed about a material risk could have a claim just on that lack of disclosure alone, separate from any debate about whether the procedure itself was done correctly. The test in most jurisdictions is whether a reasonable patient, if properly informed of the risk, would have chosen to decline the procedure. 

If the answer is yes, and the undisclosed risk is exactly what caused the harm, the absence of adequate informed consent can establish the basis for a claim even if the technical execution of the procedure met the standard of care.

What to Do Before Contacting an Attorney

Request and preserve your complete medical records immediately. According to HIPAA, patients can access the record if they request it. In this case, providers must provide this information as requested.

The document is the major proof in any malpractice case and includes the whole history of symptoms, tests, diagnoses, decisions about treatment, and correspondence with providers. Do not delay this request.

Healthcare systems and malpractice insurers have experienced claims-management staff, and anything said in those conversations can be used to characterize how the patient read the events before an attorney has evaluated the file.

Limitation periods on medical malpractice claims are dependent on each state but normally range between one and three years after the occurrence of the negligent act or when the injury is discovered. There are also some jurisdictions that apply the discovery rule, and thus the period would only start after the injury has been discovered.

But other states also add a statute of repose, which ends the ability to sue no matter when the discovery actually happened. These deadlines are absolute, with no wiggle room, and once they pass, then the viable claims are permanently barred.

A health issue that worsened due to a misdiagnosis or delay in making the diagnosis, a surgical mistake that should never have occurred, a drug that caused injury due to a medication error, or a procedure performed without informed consent.

A medical malpractice attorney can review the records, consult with appropriate medical experts, and give an honest assessment of whether the four required elements can be proved. Waiting does not create options. It eliminates them.