Introduction

        Medical malpractice cases are designed to prove negligence against the physician in favor of the patient following the criteria listed, “(1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages. Money damages, if awarded, typically consider both actual economic loss and noneconomic loss, such as pain and suffering”[1]. Medical malpractice is increasingly significant as the number of cases rises globally, impacting how physicians diagnose and treat patients [2]. How do you balance protecting both patients and physicians? From a patient's perspective, they may sue a physician for negligence if they believe in their actions, such as misdiagnosis or incorrect medication dosage, prevented proper treatment, and led to a worsening condition [3]. From the physician’s perspective, medical malpractice insurance reduces the financial liability for patients, even in the cases of misdiagnosing patients, medication mistakes, and further errors [4]. This raises a key question: how do we distinguish medical malpractice, and what threshold makes it legally punishable under malpractice insurance?

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[1]Bal B. S. (2009). An introduction to medical malpractice in the United States. Clinical orthopaedics and related research, 467(2), 339–347. https://doi.org/10.1007/s11999-008-0636-2 Bal B. S. (2009). An introduction to medical malpractice in the United States. Clinical orthopaedics and related research, 467(2), 339–347. https://doi.org/10.1007/s11999-008-0636-2

[2] Pandey, S. K., & Sharma, V. (2023). Alarming rise in consumer cases/medical malpractice claims with huge compensation: How to safeguard medical professionals?. Indian journal of ophthalmology, 71(3), 1041–1043. https://doi.org/10.4103/IJO.IJO_2530_22

[3] What Are the Most Common Medical Malpractice Claims? | Medical Malpractice. (n.d.). Ben Crump. https://bencrump.com/faqs/what-are-the-most-common-medical-malpractice-claims/

[4] Bono MJ, Wermuth HR, Hipskind JE. Medical Malpractice. [Updated 2022 Oct 31]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2026 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK470573/#

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Patients’ Perspective

        First, it is a misdiagnosed condition. Treatments begin for the misdiagnosed condition. Hospital and medical bills have begun to accumulate. The root condition is still there, and symptoms have not been managed. More hospital visits, time, and money are spent towards fixing conditions, all because of the initial misdiagnosis. It may eventually lead to the correct diagnosis, but if it does not, the physical, mental, and monetary distress caused by a misdiagnosis can form the basis of a medical malpractice claim [5]. The legal foundation of such a case rests on negligence, defined as “the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances. Either a person’s actions or omissions of actions can be found negligent. The omission of actions is considered negligent only when the person had a duty to act (e.g., a duty to help someone because of one’s own previous conduct)” [6] ”. Simply put, the physician not only made the initial misdiagnosis, but was not willing to take the necessary steps to provide the required care for the patient.

        Additionally, they did not follow the accepted standard of care, including evidence-based practices and formal consenting processes. They failed to utilize the patient’s history to understand which diagnostic tests would be most beneficial, negligent in maintaining patient safety and rights [7]. The process of filing a medical malpractice claim is extremely long and expensive, and around 80-90% of jury trials are favored in the outcome of physicians for medical negligence [8]. The first step is meeting with the medical malpractice lawyer to ensure the specifics of the case qualify for medical malpractice. After doing so, patient medical records will be obtained (which can take months or up to a year) and once records are obtained, the medical team within the firm will look over them to build a case of medical malpractice or determine if bringing the case to court is an option worth pursuing. After the case is put together, expert witnesses are selected to corroborate the case, and the case is moved to a pre-trial phase where evidence is collected, and depositions are taken of the defendants. Subsequently, settlements can be accepted, denied, or negotiated by the defendant's lawyer during the pre-trial phase. If it is rejected, the case moves forward to trial, most likely in front of a jury, lasting anywhere from one week to four weeks. Once the final verdict has been reached, the defeated party has the right to appeal. The final step is both the defendant and the plaintiff signing an agreement that the plaintiff can no longer pursue the issue—receive any monetary benefits—regardless of if their condition worsens but they are not obligated to refund the money to the defendant if they do improve in their health [9]. Annually, there are around 15,000-20,000 medical malpractice lawsuits in the United States with plaintiffs winning around 21% of cases [10]. Overall, the number of medical malpractice cases filed has been steadily increasing due to an increase in the use of technology, utilizing Google to view symptoms, and increased access to legal knowledge has caused patients to pursue legal avenues in more situations than before. As a result of the pandemic and healthcare worker shortages, treatments have been stalled, which is causing more patients to pursue "negligent" routes [11].

 

[5] Justia. (2019, February 7). Misdiagnosis and failure to diagnose | justia. Justia.com. https://www.justia.com/injury/medical-malpractice/common-types-of-medical-malpractice/misdiagnosis-andfailure-to-diagnose/

[6] Cornell Law School. (2023, July). Negligence. Legal Information Institute; Cornell Law School. https://www.law.cornell.edu/wex/negligence

[7] Dimmer, A., Baird, R., & Puligandla, P. (2024). Role of practice standardization in outcome optimization for CDH. World journal of pediatric surgery, 7(2), e000783. https://doi.org/10.1136/wjps-2024-000783

[8] Peters P. G., Jr (2009). Twenty years of evidence on the outcomes of malpractice claims. Clinical orthopaedics and related research, 467(2), 352–357. https://doi.org/10.1007/s11999-008-0631-7

[9] 10 Steps of a Medical Malpractice Lawsuit | JJS Justice. (2015, November 12). Www.jjsjustice.com. https://www.jjsjustice.com/medical-malpractice-lawsuit-evidence-settlement/

[10] Thorsnes Bartolotta McGuire. (2023, August 24). Medical Malpractice Statistics. Tbmlawyers.com. https://www.tbmlawyers.com/blog/statistics-medical-malpractice

[11] lainjuryattor. (2022, May 11). Increase in Medical Malpractice Claims Amid COVID-19. LOWENTHAL and ABRAMS, P.C.

 

Physicians’ Perspective

        Approximately 34% of all physicians have had a medical malpractice lawsuit filed against them [12]. Although it is common for physicians to experience a medical malpractice lawsuit, the process is still time-consuming and expensive. Physicians purchase medical malpractice insurance as a safeguard against potential lawsuits. Included in this insurance “package” is an inaccuracy during treatment and surgery, consisting of imprecise location or extraneous procedures. Additionally, misdiagnosing a patient or leaving a surgical tool inside a patient during a surgery are all examples of what would be covered under medical malpractice insurance [13]. If a surgical error led to further complications or a health decline within the patient, this would also be covered under the insurance policy purchased by the physicians. Sexual misconduct, illegal switching records, violating patient privacy, and assault/abuse are not covered by insurance and are grounds for patients to take physicians to court. Typical insurance policies “offer limits of coverage ranging from $100,000 to $300,000 and $1 million to $3 million. The first number is the maximum amount the insurance company will pay per claim during the policy period, which is usually 1 year. The second amount is the maximum the company will pay for all claims during the same policy period. If there are claims or judgments against you, you will be personally responsible for paying any damages that exceed your insurance policy limits” [14]. There is a limit to what insurance is responsible for, which impacts how much malpractice incidents can occur. Physicians are typically well protected in terms of medical malpractice to prevent an uprising in medical licenses being revoked.

 

Specific Medical Malpractice Case

        Dr. Nikita Levy, a gynecologist employed at Johns Hopkins, was found to have been secretly recording his patients (over 60 being under 18), utilizing special equipment to remain covert. Hospital security was informed of the situation and addressed Dr. Levy in his office where further authorities were contacted. A later investigation disclosed that he recorded over a thousand videos and 140 images of his patients in a nonconsensual and covert manner [15]. Levy also engaged in inappropriate conduct during the examinations with his patients. The lawsuit was then filed against Johns Hopkins, and a settlement of $190 million resulted from an extensive trial process [16]. From this case, hospitals more notably enforced policies and increased internal privacy standards to provide the best care for patients and prevent medical malpractice cases. As medical malpractice cases continue to rise, the gray area between protecting the patient or the physician will continue to be a matter of debate.

 

[12] Guardado, J. (n.d.). Policy Research Perspectives Medical Liability Claim Frequency Among U.S. Physicians. https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/government/advocacy/policyresearch-perspective-medical-liability-claim-frequency.pdf

[13] What Does Medical Malpractice Insurance Cover? (2018). Gallaghermalpractice.com. https://www.gallaghermalpractice.com/blog/post/what-does-medical-malpractice-insurance-cover/

[14] Malpractice Insurance: What You Need to Know. (2007). Journal of oncology practice, 3(5), 274–277. https://doi.org/10.1200/JOP.0756501

[15] Johns Hopkins Pays $190 Million Settlement To Victims Of Pelvic Exam Recording – The Sanders Law Firm. (2021). Thesandersfirm.com. https://thesandersfirm.com/news/johns-hopkins-pays-190-million-settlement-victimspelvic-exam-recording/

[16] Leading the $190 Million Settlement of the Dr. Nikita Levy Case. (n.d.). Schochor and Staton, PA.