Medical malpractice is negligence committed by a professional health-care provider--a doctor, a nurse, a dentist, a technician, or a hospital or nursing facility--whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient. Most medical malpractice actions are filed against doctors and hospitals.

Hasn't there been talk about changing the way that malpractice cases are handled?

Yes. Starting in the 1980s and continuing into the twenty-first century, doctors and members of the insurance industry have said there was a "malpractice crisis," with spiraling insurance premiums and unreasonably high jury verdicts. In response, some states passed laws capping damage awards, limiting lawyers' fees, and shortening the time period in which plaintiffs could bring malpractice suits. Some states instituted no-fault liability for malpractice claims, or developed arbitration panels to hear medical malpractice claims before they could be filed in court to be determined by a judge or jury. California limited recovery for pain and suffering in malpractice lawsuits.

What do I do if I think I have a medical malpractice claim?

What were the circumstances surrounding your illness or injury? How did your doctor treat it? What did your doctor tell you about your treatment? Did you follow your doctor's instructions? What happened to you? Answers to these and other relevant questions become important if you think your doctor may have committed malpractice. Your lawyer will look at all this information and may have it reviewed by a doctor. Your lawyer might tell you that the care you received was proper or that a suit is warranted.

How does a jury determine if a doctor's actions were within the standards of good medical practice?

A jury will consider testimony by experts--usually other doctors--who will testify whether they believe your physician's actions followed standard medical practice or fell below the accepted standard of care. In fact, many states require a plaintiff in a medical malpractice case to have expert testimony supporting the plaintiff's position. In deciding whether your heart surgeon was negligent, for example, a jury will be told to rely on expert testimony to determine what a competent heart surgeon would have done under the same or similar circumstances. A specialist, like a heart surgeon, is held to a higher standard of care than that expected of a nonspecialist.

I signed a consent form before my doctor performed surgery. What did it really mean?

If you can prove that your physician misrepresented the facts or failed adequately to inform you of the risks and benefits before surgery, your consent may be invalid. The only time the law excuses doctors from providing such information is in emergencies or when it would be harmful to a patient. But even if your doctor should have secured your consent and did not, you still may not automatically recover damages. You may still have to prove that if adequately informed, a reasonable person would not have consented to the surgery.

If the consent form is considered valid, can I recover any damages in a malpractice action against my doctor?

Yes, you still may be able to recover damages. A consent form does not release from liability a physician who did not perform the operation following established procedures or who was otherwise negligent. You may also have a claim that the surgery performed went beyond the consent you gave. In such a case, the doctor might even be liable for battery.

What if I'm just not satisfied with the results of my surgery? Do I have a malpractice case?

In general, there are no guarantees of favorable medical results. In order to prevail in a medical malpractice case, you would have to show an injury or damages that resulted from the doctor's deviation from the appropriate standard of care for your condition.

I became pregnant even though my husband had a vasectomy. Can we recover damages?

Yes, you may be able to win such a case. A number of negligence cases have been permitted against physicians for performing unsuccessful vasectomies or other methods of sterilization that resulted in unwanted children. Courts increasingly allow a suit to be filed by the parents of a child born as a result of wrongful conception or wrongful pregnancy. Damages generally are limited to those associated with the pregnancy and birth and do not extend to support of the child.

I don't think it was necessary for me to have a cesarean section when I delivered my daughter. Is there anything I can do about it?

Although most malpractice cases involving cesarean sections are brought against doctors who did not perform them when they should have, with resulting injuries to the mother or child, it is possible for a woman to win damages against her doctors for unnecessarily delivering her child by cesarean section. It still would be necessary for an expert to state that in doing the cesarean section, the delivering doctor deviated from the appropriate standard of care.

My aunt discovered that a sponge left in her during an operation years ago was the source of stomach trouble. May she still sue?

Like other personal injury cases, medical malpractice lawsuits are subject to specific statutes of limitations (discussed above). Until recently, your aunt's suit may have been thrown out of court. In many statutes, time limits on filing began when the injury occurred--on the day of the operation. To alleviate such a harsh and final result, many states today have altered their laws, and the clock for filing a case does not begin to tick until people discover that they have suffered an injury, or should have discovered it.

How much can I win?

The dollar amounts of these caps vary, though they are often in the hundreds of thousands of dollars. While that still may sound like a lot of money, remember that you will have to pay large lawyer's fees, or perhaps a percentage of your award in a contingency arrangement. There is a good chance that you will get less than the amount of the cap. The doctor may appeal if you win, or the judge may reduce the amount of your award. Do not think of medical malpractice as a way to hit the jackpot. Think of it as a way to provide minimum compensation for your injuries.

What exactly is a damages cap?

A damages cap limits the amount of money a jury may award to you in a malpractice case. The damages cap varies by state. Some states do not cap damages at all, claiming that to do so would violate that state's constitution. Indiana caps damages at $500,000, while California caps damages at $250,000. States may put a limit on punitive damages only, or on both punitive damages and any money that compensates you for your injury alone. Putting caps on damages is a hot topic in legal and political circles. The type of cap may vary from state to state, but look for more states to put a cap on damages in the coming years.

Why would a state put a cap on damages?

A cap on damages discourages people from bringing lawsuits simply because they think they can win a lot of money. When there are fewer lawsuits, the cost of your health care goes down (theoretically) because doctors are not passing on the insurance costs to you.

Can the jury get around the damages cap?