Malpractice 101 — What is Malpractice?

Unless you’ve been living under a rock, perhaps a rock on the surface of the moon, it will come as no surprise that heart disease is the #1 killer of Americans and that cancer runs a close second. What probably will surprise you is that the #3 leading cause of death in The United States of America is medical negligence. That’s right! You’re more likely to die of medical negligence than from a motor vehicle accident, a gunshot wound, or even pneumonia. In fact, 200,000 Americans die from medical negligence every year!


Physicians would prefer not to think of themselves like this. Unfortunately, medicine is a difficult business and “to err is human…”

Medical negligence occurs when a healthcare provider doesn’t follow “standard of care.” Standard of care is doing what a reasonable healthcare provider (a doctor, nurse, etc.) would do in a similar circumstance. For instance, it is standard of care to listen to a patient’s lungs, get a chest X-ray, and start antibiotics for a patient with suspected pneumonia. It is not standard of care to prescribe magic mojo mushrooms for a patient with pneumonia and doing so would be negligent. Generally speaking, healthcare providers don’t go to jail for being medically negligent. Instead, American society handles allegations of medical negligence in the civil justice system (as opposed to the criminal justice system). This is the notorious, awful, infamous, horrible, terrible process known as “malpractice.”


Bloodletting. Standard of care…in 1800.

What is malpractice? Every doctor’s nightmare! Yes, that’s one good answer, at least from my point-of-view, but it’s not the answer that we’re looking for today. The legal definition of malpractice requires four “necessary conditions:” 1. A Duty to Treat, 2. A Breach of the Duty (aka: Negligence), 3. A Harm that was Caused by the Negligence, and 4. Causation. If all four of these legal conditions aren’t met, and no matter how much your doctor screwed up, it isn’t malpractice. Let’s take the example of Dr. “X” as an example to make sense of this legal mumbo jumbo.


The honorable esquire, John Edwards. A highly successful malpractice attorney, Mr. Edwards is also famous for his nearly successful run for President of The United States in 2004 (he ran again in 2008). He is infamous for cheating on his terminally ill wife and for allegedly paying his mistress to keep quiet about her pregnancy with his child.

A Duty: You can only sue Dr. X for malpractice if Dr. X has personally been your doctor in the past. It doesn’t matter how terrible Dr. X looks when he’s selling “Magic Health-for-Life” pills on latenite television; if you haven’t personally been a patient of Dr. X’s in the past then you can’t sue him for malpractice.


A bad doctor, but not one that you can necessarily sue.

A Breach of Duty (i.e. A Negligence): Once we’ve established that Dr. X was your physician at some point in the past (nice work with the doc-shopping by the way!), your next step in suing him for all he is worth is to prove that he was negligent in his treatment. For example, if you showed up to Dr. X’s clinic with an ingrown toenail and he decided to do a minor surgery on your hand instead of on your foot you might just have a case.

Think Fast: What is a “Breech?”







A baby who is being born “butt” (or leg) rather than head first. Most breech presentations are born via C-section today due to their higher rate of birth complications.

A Harm and A Causation: We’ve now established that Dr. X was your physician (a duty) and that he was negligent when he operated on your hand instead of removing your ingrown toenail. The final necessary conditions to complete your malpractice claim are to prove that Dr. X’s negligence actually caused harm. Let’s say that Dr. X clipped your fingernails instead of your toenails – that would have been negligent, but your case against him isn’t going anywhere because you weren’t actually harmed by the negligence. On the other hand, if Dr. X unnecessarily amputated your finger or your hand then you definitely do have a valid legal complaint.



Variation by States:

Malpractice laws vary from state-to-state. Let’s use California as an example of some of the common caveats. One common difference between the states is variations in the statute-of-limitations. The statute-of-limitations is the time period during which you must file your complaint. For example, if the statute-of-limitations is five years and you file your suit twenty years after the fact you don’t have a case! In California, “a medical malpractice action for injury or death must be brought within one year from the date the claimant discovered the negligent act, but no more than three years from the date of the injury.” In other words, if a doctor is negligent and you are injured by this negligence then you only have a maximum of three years in California to file your malpractice complaint.


Caps on non-economic damages are another significant variation between the states. Non-economic damages are “compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury.” Let’s assume that Dr. X amputated your hand and that you’re suing him. You can (and will) sue him for economic damages, in other words, your lost wages from your inability to work due to not having one of your hands anymore. However, the real money pot in most malpractice cases is from the non-economic damages, compensation from the emotional pain caused by walking around with a hook instead of your hand anymore. Some states cap these non-economic damages whereas others do not. In California, a state that has had malpractice reform, non-economic damages are limited to $250,000. In California this is also the cap for wrongful death, a good thing for doctors but a lousy deal for patients who have truly had their life screwed up due to medical negligence. It is true that malpractice suits have run wild in this country and hurt both physicians and the public due to burgeoning medical costs; however, it is also true that medical negligence really does hurt a substantial number of people and that blanket caps on damages can make it difficult for these people to win fair compensation, compensation that some of them need to pay for the medical care (not to mention rent, groceries, etc.) that they will need for the rest of their lives. As with most things in life, malpractice reform is a double-edged sword.

Dr. Leonardo Noto

Physician and Author of Medical School 101, Intrusive Memory, The Life of a Colonial Fugitive, and The Cannabinoid Hypothesis. Amazon Link to Doc’s Writing:

NOTE: The Life of a Colonial Fugitive — my dark historical thriller — is free for your ereader at Thanks for reading!

Author Bio: Dr. Leonardo Noto is the nom de plume of a former airborne battalion surgeon who is now in civilian practice. Dr. Noto is the author of four books and he also writes for a medical education corporation that assists medical students, interns, and residents as they prepare for the medical board examinations. Dr. Noto is the proud father of an extremely spoiled 16-month-old American Bulldog who enjoys slobbering everywhere and tearing up things that he is not supposed to! Dr. Noto is an amateur practitioner of muay Thai and Brazilian jiu jitsu and he recently began learning to play the guitar (but he is currently a quite terrible musician, as his neighbors will readily attest).

Remember to discuss all health concerns with your personal physician (I don’t count!) before making any medical decisions. is intended to present general medical information for entertainment purposes and not as specific guide to any medical treatment. The author has made every effort to present accurate information; however, due to the ever-changing nature of medicine and the intrinsic caveats that are inherent in any particular case, no medical decisions should ever be made based on information gleaned from the internet (duh!). The internet and self-education are great, but they don’t replace your Doc!

The opinions voiced on this medical blog are solely the author’s own and they do not reflect the opinions or values of Dr. Noto’s employers, past or present. Dr. Noto’s medical blogs should never be used as supporting evidence for legal testimony — this is of course obvious to anyone who isn’t a complete moron, but some people are rather stupid.


1.       Cheeks, Demetrius. 10 Things You Want To Know About Medical Malpractice.

2.       Legal Principles in Medicine.

3.       Summary of Malpractice Laws by the State.

4.       Ending the Confusion: Economic, Non-Economic, and Punitive Damages.

5. Lil’ Grim Reaper:

6. Blood Letting:

7. Quack Doctor:

8. Breech Birth:

9. Captain Hook: