Merck Manual

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Medical Malpractice


Thaddeus Mason Pope

, JD, PhD, Mitchell Hamline School of Law

Reviewed/Revised Oct 2023

Patients can sue health care professionals if they feel they have been injured. However, successful medical malpractice lawsuits require proof of the following:

  • The care provided was below the ordinary standard of care that would be provided by similar health care professionals under similar circumstances.

  • A professional relationship existed between the health care professional and the injured party.

  • The patient was harmed because of the deviation from the standard of care.

Concern about lawsuits sometimes puts pressure on physicians to act in ways that are not necessarily in the best interest of their patients. For example, physicians may order tests that are not clearly medically necessary to avoid even a remote possibility of missing something and thus leaving themselves open to a lawsuit. This approach, referred to as defensive medicine, exposes patients to risks (eg, ionizing radiation, need for invasive and/or uncomfortable tests to confirm false-positive results) and expenses that are not justified by the medical benefit. However, such an approach is not required by law, may not protect against lawsuits, and is generally considered excessive and inappropriate.

Explaining to patients the reasons why a particular test or treatment is not recommended and engaging patients in shared decision making about their care usually satisfies patients more. The best defense against malpractice lawsuits is providing excellent health care and building close, trusting, collaborative relationships with patients.

NOTE: This is the Professional Version. CONSUMERS: View Consumer Version
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