Medical Malpractice

What is medical malpractice?

Medical malpractice is a type of personal injury claim that involves negligence by a healthcare provider. Of course, medical treatments do not always work, and mistakes can happen – a poor outcome does not mean that a medical provider has been negligent. To bring a successful claim for medical malpractice, you would need to show that:

1. the person or people treating you owed you a duty of care ( “standard of care”);


2. they failed to meet that standard of care (“breach” of the duty); and


3. as a result of that failure, you were harmed (“causation”) and have a measurable injury (“damages”)

What is a “standard of care,” and how do you know if it has been met?

For physicians, this duty of care has been codified by the legislature:
A physician licensed to practice medicine or podiatry by the Oregon Medical Board has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community. ORS 677.095(1). The “standard of care” and “breach” elements require proof that the provider failed to meet the standard of care ordinarily used by providers in the same field. In most medical malpractice claims, the proof must come in the form of testimony from a qualified expert. That expert must be in the same field or specialty area, both to establish the standard of care and to show how the provider failed to meet that standard.

What else is required to prove medical malpractice?

In most cases, the proof must also show that the provider’s negligent act or omission was a substantial factor that contributed to the harm. These causation and damage elements also typically require testimony from a medical expert. This is to establish to a medical probability that the harm resulted from the negligent conduct. If the patient establishes this causal link between the “breach” and harm, compensation can include “damages” for economic and noneconomic losses.

Economic damages are tangible losses. Think of added expenses due to the provider’s negligence. Those added expenses may be the cost of additional medical care or household services. They also may be lost wages if the injury limits the patient’s ability to work.

Noneconomic damages are more subjective. They include compensation for “pain and suffering,” such as added physical pain, emotional distress and lost quality of life. The damages must arise from the negligently inflicted injury. They cannot come from the original condition that caused the patient to seek treatment in the first place.

What if the damages are partly my fault, or the fault of more than one other person?

Medical malpractice claims typically do not involve comparative fault on the part of the patient. There are limited exceptions. This is different than many personal injury claims. A medical malpractice case focuses on injuries caused by negligent treatment. A patient’s negligence that created the injury/condition is not considered. However, a patient’s conduct that affects treatment may be considered. This may include, for example, not telling the doctor about a drug allergy or not following the doctor’s instructions. If considered, the patient’s comparative fault does not necessarily bar the claim, but it will reduce any potential recovery. The reduction would be in proportion to the percentages of fault assigned to each party. If the patient is assigned more than 50% of the total fault, the claim is barred.

In cases involving multiple defendants, each provider may be held liable only for its own conduct (or the conduct of its employees). Take a hospital for example. It ordinarily is not liable for the acts of independent, private-practice doctors that happen to occur at the hospital. But a hospital or other facility may be vicariously liable for the acts of that independent provider. This occurs when the provider appears to work for the hospital in the eyes of the patient. This also occurs when the hospital makes itself out to be the provider of the services. An example is that some patients might select their own surgeon for an operation, but the hospital typically provides related services such as radiology, pathology and anesthesia.

Are there any timelines I should know about?

An action for medical malpractice must be brought within a defined time. This is known as the “statute of limitations.” The limitations period for personal injury arising from any medical, surgical or dental treatment, omission or operation is two years from the date when the injury was discovered or reasonably should have been discovered. ORS 12.110(4). There also is a “statute of ultimate repose.” This applies regardless of whether the plaintiff has discovered the injury. This must happen within five years from the date of treatment, omission or operation. This statute of ultimate repose is absolute. The only exceptions are cases involving fraud, deceit or a misleading representation by the provider.

Legal Editor: David J. Ryan, September 2020