What is Medical Malpractice? The Complete Guide

What is Medical Malpractice? The Complete Guide to Identification and Understanding

Medical malpractice is a sensitive and complex subject that can affect any of us. When we seek medical treatment, we assume we'll receive the best and most professional care possible. But what happens when the healthcare system is negligent? When can a case be defined as medical malpractice, and what are our rights as patients?

In this article, we'll explain in detail what medical malpractice is, examine common examples, and help you understand whether your case might be considered medical malpractice.

Legal Definition of Medical Malpractice

Medical malpractice is defined as a situation where a medical professional – a doctor, nurse, hospital, or clinic – did not meet the expected professional standard, and as a result, harm was caused to the patient.

The Four Legal Elements

For a case to be considered medical malpractice from a legal standpoint, four cumulative elements must exist:

1. Duty of Care: There is a doctor-patient relationship that imposes a duty of care on the doctor toward the patient. This relationship is created the moment the doctor accepts the patient for treatment.

2. Breach of Duty: The doctor or medical staff deviated from the accepted professional standard. In other words, they did not act as a reasonable and skilled doctor would have acted under the same circumstances.

3. Damage: Actual harm was caused to the patient – physical, mental, or economic. This can be a worsening of health condition, disability, pain and suffering, or even death.

4. Causation: There is a direct connection between the breach of duty and the harm caused. In other words, the damage would not have occurred but for the negligence.

What is "Professional Standard"?

The professional standard is the level of care and skill that a reasonable and skilled doctor in the same field would exercise under the same circumstances. This does not refer to the best doctor, but rather to the accepted and reasonable level within the medical community.

It's important to understand: Not every medical error is negligence. Medicine is not an exact science, and sometimes even proper treatment may lead to unwanted results. Negligence occurs only when there is a significant deviation from the accepted standard.

Common Examples of Medical Malpractice

To better understand what medical malpractice is, here are real-life examples that frequently appear in Israeli courts:

1. Diagnostic Errors

Misdiagnosis or delayed diagnosis are among the most common causes of medical malpractice claims.

Examples:

• Failure to detect cancer at an early stage, leading to disease progression and reduced recovery chances
• Misdiagnosis of a heart attack as simple shortness of breath
• Failure to identify meningitis in a child
• Missing a fracture on an X-ray

Case Example: A 45-year-old female patient complained for months about abdominal pain and fatigue. The doctor attributed the symptoms to stress and tension, without referring for in-depth tests. Six months later, she was diagnosed with advanced ovarian cancer. The court ruled this was negligence, as a reasonable doctor would have referred for additional tests given the symptoms.

2. Surgical Errors

Surgeries are complex procedures, but certain mistakes are considered unacceptable.

Examples:

• Surgery on the wrong organ or wrong side of the body
• Leaving surgical instruments (scissors, sutures, gauze) inside the body
• Injury to nerves or adjacent organs during surgery
• Surgical wound infection due to failure to maintain sterility standards

Case Example: A patient came for surgery on the right knee, but the medical team mistakenly operated on the left knee. This is a classic case of gross negligence, called a "Never Event" - an event that should never happen.

3. Medication Errors

Examples:

• Administering a drug the patient is allergic to, despite the allergy being documented in the medical file
• Wrong dosage of medication (too high or too low)
• Administering the wrong drug
• Failure to identify dangerous drug interactions

Case Example: A child received an adult dosage of medication instead of a pediatric dose. The child suffered severe side effects and required prolonged hospitalization. This is clear negligence that led to preventable harm.

4. Birth Negligence

Delivery room negligence is one of the most serious categories, as it affects both the baby and the mother.

Examples:

• Failure to identify fetal distress in time
• Improper use of forceps or vacuum
• Delay in performing emergency cesarean section
• Injury to the baby's brachial plexus (a condition called Erb's Palsy)

Case Example: During delivery, the medical staff ignored signs of fetal distress on the monitor. The baby was born with severe brain damage due to lack of oxygen. The court ruled that if the staff had performed a cesarean section in time, the damage would have been prevented.

5. Orthopedic Negligence

Examples:

• A fracture that was not diagnosed or treated incorrectly
• Surgery that caused nerve or blood vessel damage
• Poor recovery due to insufficient medical follow-up

6. Emergency Room Negligence

Examples:

• Discharging a patient home despite concerning symptoms
• Failure to perform necessary tests
• Long waiting times that led to worsening condition

7. Failure to Obtain Informed Consent

According to the Patient Rights Law, a doctor must explain to the patient the proposed treatment, the risks, and the alternatives. Failure to provide this information may be considered negligence.

Case Example: A patient underwent spinal surgery without the doctor explaining that there was a conservative alternative of physiotherapy and medication. After the surgery, the patient was left with chronic pain. The court ruled that the patient should have been informed of the alternatives, and had he known, he would not have performed the surgery, and therefore he is entitled to compensation for damages caused by the surgery.

Statistics on Medical Malpractice in Israel

Understanding the scope of the problem can help us assess the importance of the issue:

• Number of claims: In Israel, approximately 1,500-2,000 medical malpractice claims are filed annually
• Success rate: Only about 30-40% of claims end in a verdict or settlement in favor of the patient
• Average compensation: The average compensation in successful claims ranges from 200,000 ₪ to millions of shekels, depending on the severity of the damage
• Duration: A medical malpractice claim lasts an average of 3-7 years

Fields with High Claim Rates

According to data from the Ministry of Health and the courts:

1. Obstetrics and delivery - about 25% of claims
2. Orthopedics - about 20% of claims
3. General surgery - about 15% of claims
4. Neurology - about 10% of claims

The Difference Between Medical Malpractice and an Unwanted Outcome

This is one of the most confusing aspects for patients. It's important to understand that not every bad outcome is a result of negligence.

When is it NOT Negligence?

Known and expected complications - Every medical procedure involves risks. If a complication occurs despite the doctor acting according to accepted standards and explaining the risk in advance - this is not negligence.

Example: In abdominal surgery, there is a small risk of bleeding or infection, even when the surgery is performed perfectly. If the complication occurs despite maximum caution - this is not necessarily negligence.

Limitations of medicine: Medicine cannot guarantee results. There are diseases that cannot be easily diagnosed, and treatments that don't work for everyone.

Natural disease progression - If a patient suffers from a serious disease and their condition worsens despite proper treatment - this is not negligence.

When IS it Negligence?

Clear deviation from standard - When the doctor did not act as any reasonable doctor would have acted in the same situation.

Failure to perform basic tests - When symptoms require investigation, and the doctor neglects to perform the required tests.

Ignoring warning signs - When there are clear signs of a problem, and the doctor ignores them.

When Should You Consider Filing a Medical Malpractice Claim?

Not every case of negligence justifies filing a claim. A medical malpractice claim is a long, expensive, and emotionally complex process. Consider filing a claim when:

✓ Significant harm was caused - disability, prolonged pain and suffering, high medical expenses, or loss of earning capacity

✓ Clear evidence exists - medical documentation, testimonies, or expert opinion from another specialist

✓ The case has not expired - In Israel, there are 7 years to file a claim from the day the damage was discovered (or from the day it could reasonably be discovered) and no more than 10 years in any case. For minors - the 7-year statute of limitations begins on the day they turn 18.

✓ There is a reasonable chance of success - after consulting with an experienced lawyer in the field

Types of Damages You Can Claim

In a medical malpractice claim, several types of compensation can be claimed:

1. Pain and Suffering

Compensation for physical and mental pain caused as a result of negligence. This includes:

• Physical pain
• Mental distress
• Anxiety and depression
• Impact on quality of life

2. Loss of Earnings

Compensation for reduced ability to earn a living:

• Lost income in the past (from the day of negligence until today)
• Future loss of earning capacity
• Reduced promotion prospects

3. Medical Expenses

• Medical treatments that were required due to negligence
• Medications
• Rehabilitation and physiotherapy
• Medical equipment
• Expected future treatments

4. Assistance, Care, and Mobility

• Help with difficult household tasks in the mildest cases and up to 24-hour care in severe cases
• Home modifications
• Compensation for increased mobility costs caused by the disability

Frequently Asked Questions

Is every medical error negligence? No. Negligence occurs only when there is a significant deviation from the accepted professional standard, and as a result, harm is caused.

How long do I have to file a claim? In Israel, the statute of limitations is 7 years from the day the damage was discovered. In special cases, it can be argued that the discovery of damage was later. For minors, the statute of limitations is 7 years from the day they turn 18.

Do I have to file a claim through a lawyer? Theoretically, you can file a claim yourself, but this is highly not recommended. Medical malpractice claims are extremely complex and require in-depth legal and medical knowledge.

How much does it cost to file a claim? Most lawyers in the field work on a "percentage of success" basis (No Win - No Fee), meaning they receive a percentage of the compensation only if the claim succeeds. The customary percentage is 25-30% of the compensation, plus reimbursement of expenses.

What is the chance my claim will succeed? This depends on the specific case. Consultation with an experienced lawyer will give you a better assessment.

In Conclusion - Do You Suspect Medical Malpractice?

If you think you or a family member have experienced medical malpractice, the first steps to take:

1. Document everything - write down everything that happened, including dates, names, and symptoms
2. Collect medical documents - get a copy of the complete medical file
3. Keep receipts - any medical or related expense connected to the case
4. Consult with an experienced lawyer - most firms offer an initial consultation at no cost
5. Get a medical opinion - the lawyer will refer you to an appropriate expert

Remember: You have rights, and there is someone who can help you exercise them. Medical malpractice is a serious issue, and the legal system exists to protect injured patients.

This article provides general information only and does not constitute legal advice. To receive advice tailored to your case, contact an expert medical malpractice lawyer.