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Medical Malpractice Overview

Malpractice is a specific legal term related to lawsuits alleging various different circumstances leading to damage to a patient.

Medical malpractice suits may allege various mistakes made by doctors, nurses, or other medical professionals, including misdiagnosis, mistreatment, or various types of negligence.

Not all errors in medical diagnosis and treatment are necessarily malpractice, because there are certain risks and margins for error that arise inherently in the practice of medicine.

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The Top Diseases Associated With Medical Malpractice
(in terms of dollar value of monetary award):

  • Breast Cancer
  • Lung Cancer
  • Colorectal Cancer
  • Heart Attack
  • Appendicitis

Surprisingly, the main allegation is a form of misdiagnosis; either delayed diagnosis or mismanagement of diagnostic testing. Typically, this delay or oversight leads to severe complications and often death. The severity of misdiagnosis of these conditions and the poor outcomes that may result tend to explain why large monetary awards can occur.

The statute of limitations is a legal term related to when you can file a malpractice suit. It is a time limit that restricts when you can start a lawsuit. The length of the statute of limitations depends on the state (or country) in which you live, or in which you would initiate the lawsuit.

Statutes Of Limitations

In many states such as Kansas, a medical malpractice action must be brought within two years after the fact of injury becomes reasonably ascertainable to the injured person, but in no event more than four years after the act giving rise to the cause of action.

If a claimant is incompetent (due to minority, incapacity, or imprisonment) he may bring an action within one year from the date the disability is removed, but no action may be brought more than eight years after the act giving rise to the cause of action.

Alternate Statutes Of Limitations

In some other states, such as Missouri, medical malpractice actions must commence within 2 years from the date of discovery of the act or omission giving rise to injury, to a maximum of ten years after the date of that act. Under Missouri law, minors injured by medical malpractice while under the age of 8 must file a medical malpractice action by their 20th birthday.

Regardless of what state you live in, patients often do not know there was any negligence on behalf of a doctor or other medical care provider until it is too late, i.e. more than 2 years or so close to the 2 year limit that proper investigation needed to prepare a lawsuit is impractical.

A medical malpractice lawsuit in Missouri requires a "certificate of merit" by a medical professional in the same area of medicine. This often takes weeks, if not months to get.

There are several exceptions that can toll the start of the two years, one of the primary exceptions is the "failure to inform exception" laid out in Missouri Statute 516.105(2). If the alleged medical malpractice is the failure to inform a patient of test results, then the 2 years runs from the actual discovery of the adverse test results or when the patient "in the exercise of ordinary care should have discovered such alleged negligent failure to inform."

Case Example: In the pending case, the patient had a mammogram that revealed she had breast cancer. The doctor never informed the patient of the adverse test result; therefore, she did not discover she had breast cancer until almost 3 years later when she had a subsequent mammogram.

Undoubtedly, the cancer was much more severe and progressive three years later; which lead to more invasive, aggressive, and drawn out medical treatment.

The Defendant hospital and doctor tried to have the case dismissed claiming that the patient should not be able to recover because the case was not filed until 3 years after the failure to inform. The defendants argued that the exception should not allow the statute to toll an extra year because the patient should have investigated or found out about the error on her own much sooner.

The defendant's filed a motion for summary judgement on the issue, and an order was entered that allowed justice for the woman to still be within reach.

The Judge held that the statute of limitations does not bar the case, but that a jury should be able to decide whether or not she should have investigated or got a subsequent test sooner.

Often we are bombarded with the propaganda that personal injury trial lawyers file unjust cases against doctors, when this is far from the truth. Healthcare providers have more legal protections than any other individuals or entities under the Missouri Tort system; yet in this case a doctor clearly failed to inform a patient she had cancer and still attempts to blame the patient and claim the lawsuit is illegitimate

Medical Malpractice Resource Center

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    Nearly 50% of malpractice trials are against surgeons.

    Nearly 33% of malpractice trials are against nonsurgeons.

    Plaintiffs win at least one-third of medical malpractice cases.

    18,999 medical malpractice payment reports were made in the US 2002.

    About 25% of practicing physicians are sued annually.

    About 55% of physicians are sued at least once during their career.

    Approximately 80% of medical malpractice payment reports were against physicians in the US.

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