What Is Medical Malpractice Lawyer?

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Malpractice is a term that refers to professional misconduct on the part of a medical professional or lawyer. In the medical field, malpractice involves the negligent conduct of doctors, nurses, dentists, therapists, technicians, and other medical professionals and healthcare providers.

Medical malpractice cases can arise from surgical errors, birth traumas, medical misdiagnoses, anesthesia errors, unreasonable delay in treating a diagnosed condition or failure to obtain informed consent from a patient before treatment.

In such cases, medical malpractice attorneys litigate lawsuits on behalf of their clients, patients, or surviving family members who have been affected by the Adverse Effects of Medical Treatment (AEMT), and may bring a lawsuit against the negligent parties, including physicians, doctor's groups, insurance companies, managed care organizations, hospitals, medical corporations, and clinics.

Medical Malpractice Legal Theories

In medical malpractice cases, negligence is the predominant theory of liability. In order to recover for negligent malpractice, the plaintiff's medical malpractice attorney must establish the following elements:

  1. Duty: The plaintiff must show the duty of the doctor to the patient. This duty is usually based on the existence of a doctor-patient relationship.
  2. Breach: The plaintiff must show that the medical professional violated the applicable standard of care.
  3. Causation: The plaintiff must establish a causal connection between the breach of the standard of care and the injury.
  4. Damage: The plaintiff must have sustained actual injuries as a result of the doctor's deviation from the standard of care.

Medical Malpractice Lawyer Duties

As a type of personal injury lawyer, a medical malpractice lawyer performs many of the day-to-day tasks of a typical civil litigator. Job functions specific to a medical malpractice lawyer include:

  • Working with medical experts to develop case theories, expert reports, and testimony to support the plaintiff's case
  • Taking depositions of medical experts, medical personnel and other third parties (in addition to the plaintiff and defendant)
  • Gathering and analyzing medical records
  • Setting up independent medical examinations (IMEs) to obtain an objective evaluation of the condition of the injured plaintiff
  • Performing medical research relating to the plaintiff's condition
  • Working with legal nurse consultants to analyze case merits, review medical records, decipher doctor's notes and accompany the plaintiff to IMEs

A medical malpractice attorney often specializes in specific types of medical malpractice cases such as birth injuries, surgery mistakes, nursing home abuse, or dental malpractice.

Education and Training

A medical malpractice lawyer must complete the same educational requirements as any lawyer: seven years of post-high school education (undergraduate degree and a law degree) and pass the bar exam for the states in which they wish to practice.

To stand out, a medical malpractice attorney can obtain board certification from a certifying organization such as the American Board of Professional Liability Attorneys (ABPLA). To obtain board certification, an attorney must exceed rigorous requirements in areas such as experience, ethics, education, examination and excellence in professional liability law.

According to the ABPLA, candidates must pass a written in either legal or medical professional liability, have completed at least 36 hours of continuing legal education (CLE) in legal or medical professional liability, and submit a list of references that include judges or attorneys who practice in legal or medical professional liability.

Medical Malpractice Lawyer Salary

As of 2014, the average salary of a medical malpractice attorney ranges between $95,000 and $115,000.  Like most personal injury lawyers, most medical malpractice attorneys charge on a contingency fee basis. Under a contingent fee arrangement, the lawyer takes a percentage of the plaintiff's net recovery. According to the Bureau of Justice Statistics (BJS), medical malpractice jury trials garner high median damage awards and are 17 times greater than the overall median awards in tort jury trials. 

Medical Malpractice Figures

According to a study published by researchers at the University of Washington in January 2019, 123,603 people died from the Adverse Effects of Medical Treatment (AEMT) from 1990 to 2016. That figure differs dramatically from oft-cited data from a 2016 John Hopkins University study, which enumerates the number of deaths between 250,000 and 400,000 annually, suggesting the death rate has actually decreased. 

Article Sources

  1. ABPLA.org. "What Is Medical Malpractice?" Accessed Jan. 17, 2020.

  2. SemanticScholar.org. "The Five Elements of Negligence," Page 1672. Accessed Jan. 17, 2020

  3. Academia.edu. "Malpractice Lawyer Job Description - Education Requirements and More." Accessed Jan. 17, 2020.

  4. ABPLA.org. "What It Takes To Become ABPLA Board Certified." Accessed Jan. 17, 2020.

  5. PayScale.com. "Average Medical Malpractice Attorney Salary." Accessed Jan. 17, 2020.

  6. LearningPath.org. "Medical Malpractice Attorney Careers: Salary & Job Description." Accessed Jan. 17, 2020.

  7. Bureau of Justice Statistics. "Medical Malpractice." Accessed Jan. 17, 2020.

  8. Sunshine JE, Meo N, Kassebaum NJ, Collison ML, Mokdad AH, Naghavi M. "Association of Adverse Effects of Medical Treatment With Mortality in the United States: A Secondary Analysis of the Global Burden of Diseases, Injuries, and Risk Factors Study." JAMA Netw Open. 2019;2(1):e187041. Accessed Jan. 26, 2020.

  9. John Hopkins University. "Study Suggests Medical Errors Now Third Leading Cause of Death in the U.S." Accessed Jan. 17, 2020.