Medical Malpractice: What is it and how do I know if I have a case?


When it comes, to medical care, you as the patient has a right to expect that the doctor or professional you are seeing will provide you with a basic standard of care.  This includes proper assessment, ordering correct lab tests, correct interpretation of tests/scans, up through diagnosis and proper treatment.  This even includes referral to a specialist or surgeon if the doctor does not specialize in the treatment of your condition.


Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from the norms of practice in the medical community and causes injury to a patient.  Medical malpractice is a specific subset of tort deals with professional negligence.


Medical malpractice falls under a large umbrella.  Depending on the nature of injury, anyone involved in your healthcare as a patient, may be help liable for malpractice.  These professionals may include doctors, surgeons, nurses, mental health providers, auxiliary healthcare professionals (xray, ct scan techs, phlebotomists, cnas), and pharmacists.  Even manufacturers of medications and medical equipment and prosthetics can be help responsible for malpractice depending on the case.


There are different types of malpractice which are outlined below.

SURGICAL ERRORS:  Surgical errors cover a wide array of issues that can occur during surgery.

-Doing the incorrect procedure

-Performing surgery that is not necessary- this would fall under elective procedures such as cosmetic surgery, etc.  Even performing operations such as a hysterectomy that is not needed to improve quality of life can be considered an unnecessary procedure.

-Damage to organs or tissues: while an operation is traumatic to organs and tissues, this means if the doctor is operating on your appendix, you should not have damage to the intestines surrounding the appendix.  Tissue damage that occurs that is not reasonable or expected to occur during the operation.

-Not maintaining a sterile field or using instruments that are not sterile.  This can be a bit confusing.  When you have an operation, the doctors wear sterile gloves, gowns, and masks.  When you are on the table there is also an area known as the “sterile field” which is draped and sectioned off so that there is no chance of anyone contaminating the area the doctor is working in.  Not keeping this area sterile or using an instrument that has not been properly sterilized before use could cause an infection.

-Leaving medical equipment in the patient.  This is self explanatory.  There have been cases where a doctor has left pieces of surgical gauze or sponges inside an patient and there is not a problem.  There are procedures in place to ensure this does not happen.  At the beginning and end of surgery, there is a count taken of exactly what is used and this also happens at the end of surgery to avoid mistakes like this.

-If your doctor doesn’t provide you with the correct follow up care after your surgery, that falls under the surgical errors umbrella.

Even though you as a patient, signs a consent form, it is assumed by you that you can reasonably expect that the professionals doing the procedure will not further harm you.

MISDIAGNOSIS:  This occurs when your doctor fails to give you as a patient the correct diagnosis.  This can also mean they diagnose you incorrectly and the treatment provided ends up doing more harm than good.  The standard for this type of malpractice is to show the doctor failed to do what an equally trained doctor would do in the same type of situation.

DELAYED DIAGNOSIS:  This is almost like misdiagnosis in that while the doctor may eventually get to the correct conclusion based on your symptoms, the delay in diagnosis or testing for the correct illness has caused you more harm that is either fatal or harmful enough that you are disable short or long term.

FAILURE TO TREAT:  This occurs when the doctor gets the right diagnosis but fails to treat you correctly.  This usually happens when a doctor has too many patients to take care of.  They call this profit over safety.  Even neglecting to send you to a specialist to treat your condition can qualify as a failure to treat.  Nursing home neglect cases are certainly a part of, think of it like a close cousin, to medical malpractice cases.  We’ll address these cases later.

BIRTH INJURY:  Birth injury is a more complex case of malpractice to prove.  This can occur when the doctor does not recognize a condition in mother or baby and fails to treat the condition and it results in injury to baby or mom or both.  The standard for proving birth injury is such that it can be proven the injury to either mom or baby was preventable and that the injury to the baby because of the doctor’s negligence will result in medical bills for a prolonged period of time or a lifetime.

MEDICAL PRODUCT LIABILITY:  This type of malpractice is double pronged.  One, if the manufacturer KNOWS that the product they sell has caused injury to patients and does not report it to the public or medical community, then you as the patient are able to proceed with litigation.  Two, if your doctor knowingly uses faulty medical products, you can also hold the doctor accountable for using products that he knows a problem exists.  More than likely, this type of malpractice falls on the manufacturer, and not the provider.  If you think about it, you can probably recall numerous commercials for things such as hernia mesh, etc.  This is a good example of medical product liability.

DRUG ERRORS:  This is a very tricky area of malpractice.  In order to hold a doctor solely responsible, you need to establish that the doctor prescribed a medication KNOWING there would be a harmful or fatal interaction with another prescription you have or prescribed a medication you are allergic to that is noted in your chart. Drug error malpractice can also fall on a nurse, technician or other provider because while a DOCTOR prescribes medicine, most of the time a nurse or other technician actually administers the medication.  If the DOCTOR prescribed the INCORRECT dose, then the doctor is solely responsible, however, if a nurse or other technician administers the drug the wrong way or the incorrect amount, the malpractice falls on the provider that administered either the wrong dose or gave the medication the wrong way.

NEGLECT/ABUSE:  This type of malpractice normally occurs in a long term setting such as a rehab facility or nursing home.  This is usually very hard to prove as most of the time, the patient has a type of cognitive impairment that makes it hard to prove.  That being said, this type of medical malpractice is usually prosecuted in a criminal AND civil court.  The provider responsible for the abuse/neglect is charged criminally, the corporation or entity that employs said employee is held responsible for not catching the abuse or neglect.  That being said, this type of malpractice is very hard to prove.


So, you have found yourself in a position that you need a knowledgeable lawyer Atlanta residents trust to assist you with a medical malpractice lawsuit. Like most people, you are probably wondering, what do I need to prove and what will my lawyer ask me to show in order to get my case into court.  I hope you never have to find yourself in this place, BUT if you do, remember THE FOUR D’S.  Look below so you can know what you need to know.

DUTY:  This means the doctor has a DUTY to provide treatment according to protocol and an established STANDARD OF CARE.   This means the doctor needs to take care of you because the doctor has agreed that he will take you on as a patient.

DEVIATION:  Deviation refers to the doctor has strayed from normal protocol or standard of care.  Basically the doctor that agreed to take care of you has not performed how it is reasonable expected that he/she should take care of you.

DIRECT CAUSE OF INJURY:  This is very important.  This D means the injury you have sustained under this doctor’s care is a DIRECT result because the doctor has deviated from a normal standard of care that is expected from a doctor that you have trusted to treat your illness.

DAMAGES:  Damages are considered a kind of black and white on paper way to hold the doctor accountable for the injury that occurred due to their negligence.

Having addressed the FOUR D’S, you need to also know that medical malpractice cases are complex and expensive.  Unlike many other types of negligence cases, these cases require that you file an affidavit signed off by an expert.


Knowing that medical malpractice has occurred and proving it in a court of law are two very different things.  While as a patient you may know what has happened is wrong, just know it is very hard to prove.  Your lawyer will be able to guide you through this process.  While we all hope this never happens to any of us or our loved ones, knowing what you will need to do as an advocate or the patient is important.  There is never a winner in a malpractice case because someone has been injured, but knowing what you can do and need is important and finding an advocate for court is very important.