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A team from Johns Hopkins Medicine estimated that a quarter of a million people die each year as a result of a medical error.1 The study ranks medical error as the third leading cause of death in the United States (250,000 deaths), next to heart disease (650,000 deaths) and cancer (600,000 deaths).2 To put it in perspective, the study suggests that more people die each year from medical errors than from accidents/unintentional injuries (170,000 deaths), chronic lower respiratory disease (160,000 deaths), or stroke (150,000 deaths).2,3

Another team from Johns Hopkins Medicine estimated that, each year, up to 12 million diagnostic errors occur, resulting in 80,000 preventable deaths.4 Such medical errors include misdiagnosis and delayed diagnosis. The team identified three major disease categories that account for serious harms: vascular events, infections, and cancers.5

A medical error, however, is not the same as medical malpractice. A medical error is based on the science of medicine, whereas medical malpractice is the legal consequence of the medical error. As discussed later in this chapter, not all medical errors are considered medical malpractice.

This chapter provides a snapshot of relevant concepts in medical malpractice litigation. While it does not cover all legal principles and rules encountered in litigation, it does provide need-to-know information meant for cancer care physicians and clinicians in general, whether as a defendant in a case, as a nonparty treating physician, or as an expert witness.


Medical malpractice falls within our civil justice system in an area called tort law and is based on the legal definition of negligence. Negligence, as defined by the law, is failure to provide reasonable care. It has four necessary elements: (1) a duty to provide reasonable care; (2) a breach of that duty or, in medical malpractice, a violation of the standard of care; (3) the violation of the standard of care was the actual and proximate cause of the injury; and (4) resulting damages. Each of these four elements must be proven. Like a four-legged table that needs all four legs, a medical malpractice lawsuit must have all four elements of negligence to stand in court.


A duty to provide reasonable care is the first prerequisite to establish negligence. Without duty owed to another person, the subsequent elements of negligence need not be established. For example, an Olympic gold medalist swimmer strolling by the beach happens to see a person drowning and pleading for help. This champion swimmer could just pull up a beach chair and watch the person drown without any risk of being sued for negligence. He might rightly be considered a despicable person in this situation, but he had no legal duty to rescue the drowning person.

Similarly, a medical doctor cannot be ...

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