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Medical Malpractice


This LegalCapsule,™  prepared by the Auerbach Law Firm, is a plain-English explanation of medical malpractice. In an effort to be brief, many points may be oversimplified. Readers are therefore cautioned to check with our offices or another lawyer as to the particulars of their case; this generalized information should not be construed to be formal legal advice.

Medical malpractice refers to the responsibility of health care providers including, but not limited to physicians, nurses, dentists, and hospitals for injury caused to a patient as a result of that provider's negligent care. 

Establishing Responsibility


Cause of the Injury

Defense to the Claim

Establishing Responsibility

To establish responsibility in a medical malpractice case, there must be a showing that the health care provider owed a duty of care to the injured party, breached that duty, and an injury was caused by that breach.

In order for a physician to owe a duty to a patient, a physician-patient relationship must first have been established. The law then places upon the physician a duty of possessing the reasonable degree of skill that is ordinarily possessed by physicians in similar circumstances.

When a physician consents to treat a patient, the duty to use reasonable care and diligence in the exercise of the physician's skill is established. The law holds the physician responsible for failing to use his or her best skill or best judgment.

Certain activities are commonly expected to be carefully performed by a physician, such as:

  • Taking a complete medical history;

  • Conducting a careful, appropriate, systematic physical examination;

  • Utilizing laboratory and other objective tests when appropriate;

  • Making a proper diagnosis;

  • Referring the patient to a specialist, when a higher degree of skill or care than the physician can offer is required;

  • Staying informed of evolving methods and treatment in the medical field; and

  • Providing adequate follow-up care.

Physicians who specialize in a certain area are expected to have greater skill in treatment within that specialty than a general practitioner.

A health care facility, such as a hospital, is responsible for injuries caused by the negligence of its employees. As with other health care providers, the hospital must exercise such reasonable care and skill as careful hospitals would utilize under the circumstances.


In order for the patient to prove malpractice, it is usually necessary to establish the required standard of care and prove that the health care provider deviated from that standard. This proof is almost always by way of expert testimony.

Cause of the Injury

For a health care provider to be held respon­sible for a patient's injury, there must be a showing that the injury was directly caused by the health care provider's negligence, that is, a deviation from the required standard of care. Proving that the injury was caused by such negligence is often a complicated issue in medical malpractice cases.

Defense to the Claim

A defense to the claim of malpractice can be based upon the argument that the patient's injury or condition would have occurred regardless of any medical negligence, thus any such negligence did not cause the injury. If the injury would have occurred anyway, but was significantly accelerated in time due to the health care provider's negligence, liability may be found. Expert testimony is usually required to establish these facts. As a general rule, the negligent treatment will be seen as the cause of the injury if it was a substantial factor in bringing about the injury.


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