Malpractice refers to professional misconduct or unreasonable lack of skill. Medical malpractice lawyers litigate lawsuits based on the negligent conduct of doctors, nurses, dentists, therapists, technicians and other medical professionals and health care providers.
Medical malpractice cases can arise from surgical errors, birth traumas, medical misdiagnoses, anesthesia errors, unreasonable delay in treating a diagnosed condition or failure to obtain informed consent from a patient before treatment. In such cases, a medical malpractice lawyer may bring a lawsuit against the negligent parties, including physicians, doctor's groups, insurance companies, managed care organizations, hospitals, medical corporations and clinics.
Medical Malpractice Legal Theories
In medical malpractice cases, negligence is the predominant theory of liability. In order to recover for negligent malpractice, the plaintiff's medical malpractice attorney must establish the following elements:
Duty - The plaintiff must show a duty of the doctor to the patient. This duty is usually based on the existence of a doctor-patient relationship.
Breach - The plaintiff must show that the medical professional violated the applicable standard of care.
Causation - The plaintiff must establish a causal connection between the breach of the standard of care and the injury.
Damage - The plaintiff must have sustained actual injuries as a result of the doctor's deviation from the standard of care.
Medical Malpractice Lawyer - Job Duties
A medical malpractice lawyer is a type of personal injury lawyer who performs many of the day-to-day tasks of a typical civil litigator. Job functions specific to a medical malpractice lawyer include:
- Working with medical experts to develop case theories, expert reports and testimony to support the plaintiff's case.
- Taking depositions of medical experts, medical personal and other third parties (in addition to the plaintiff and defendant).
- Gathering and analyzing medical records.
- Setting up independent medical examinations (IMEs) to obtain an objective evaluation of the condition of the injured plaintiff.
- Performing medical research relating to the plaintiff's condition.
- Working with legal nurse consultants to analyze case merits, review medical records, decipher doctor's notes and accompany the plaintiff to IMEs.
A medical malpractice attorney often specializes in specific types of medical malpractice cases such as birth injuries, surgery mistakes, nursing home abuse, or dental malpractice.
Education and Training
A medical malpractice lawyer must complete the same educational requirements as any lawyer: seven years of post-high school education (undergraduate degree and law degree) and bar exam passage for the states in which he wishes to practice.
To stand out, a medical malpractice attorney can obtain board certification from a certifying organization such as the American Board of Professional Liability Attorneys. To obtain board certification, an attorney must exceed rigorous requirements in areas such as experience, ethics, education, examination and excellence in professional liability law.
Medical Malpractice Lawyer Salary
Like most personal injury lawyers, most medical malpractice attorneys charge on a contingent fee basis. Under a contingent fee arrangement, the lawyer takes a percentage of the plaintiff's net recovery, usually between 33% to 45%.
According to the Bureau of Justice Statistics (BJS), medical malpractice jury trials garner high median damage awards. In fact, awards in medical malpractice jury trials are 17 times greater than the overall median awards in tort jury trials.
Moreover, forty-three states allow punitive damages in medical malpractice actions and over half do not place any limits on punitive damage awards. Since punitive damages can sometimes exceed the amount of compensatory damages awarded in a case, punitive damage awards can be quite high. These high awards have fueled tort reform in the U.S. and placed some medical malpractice lawyers among the highest-paid lawyers in the U.S.
Medical Malpractice Attorney Job Demand
On average, 195,000 people in the U.S. die each year due to potentially preventable, in-hospital medical errors, according to a recent study. The National Institute of Health reports that medical malpractice kills 225,000 patients each year. 1,500,000 people suffer injury or death from medication errors annually, according to the Institute of Medicine. Although not every injured party pursues legal action, a rising number of malpractice claims provide steady business for the medical malpractice lawyer. Therefore, job demand in this area will remain strong.