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Medical Malpractice Defense

If you are a medical professional, odds are significant that you will be accused of committing medical malpractice at least once in your career, especially if you are a physician or a surgeon. If you are a stakeholder or an owner of a healthcare company of any considerable size, you could get drawn into several medical malpractice cases every year.

Lynette Byrd
Attorney Lynette Byrd
Medical Malpractice Defense Team Lead
Former DOJ Attorney envelope iconContact Lynette
Nick Oberheiden
Attorney Nick Oberheiden
Medical Malpractice Defense Team Lead envelope iconContact Nick
Kevin M. Sheridan
Kevin M. Sheridan
Medical Malpractice Defense Consultant
Former FBI Special Agent
Wade McFaul
Wade McFaul
Medical Malpractice Defense Consultant
Former HHS-OIG Assistant Special Agent-in-Charge

The medical malpractice defense attorneys at Oberheiden P.C. defend both individuals and entities against the damaging allegations of a medical malpractice claim across the country.

What is Medical Malpractice?

Medical malpractice is a deviation from the acceptable standards of the healthcare provider’s profession. If it hurts someone, medical malpractice can lead to a medical malpractice lawsuit, which is a type of personal injury claim.

Like in other personal injury claims, the alleged victim – who would be the plaintiff in the legal action – would have to prove three things:

  1. You owed them a duty of care
  2. You breached that duty of care
  3. That breach caused their losses or legal damages

In order to have a successful medical malpractice claim, they have to prove these three elements by a preponderance of the evidence. If they succeed, you will be held liable for their losses and be made to compensate them.

Medical malpractice claims revolve heavily on the duty of care element, and particularly on the standard of care that would satisfy it. While in other types of personal injury cases, the standard of care is that of a reasonable person in similar circumstances, healthcare professionals who are providing healthcare services are held to a higher standard – that of a reasonably skilled and competent healthcare provider with a similar level of expertise in their field.

Failing to uphold that standard of care is medical negligence, another phrase for medical malpractice.

Establishing what, exactly, a “reasonably skilled and competent healthcare professional with a similar level of expertise” would have done in the particular circumstances at issue will generally drive most of the malpractice claim. Plaintiffs will argue that such a professional would have acted like an excellent doctor, but the reality is that “malpractice” is not “below average” medical care – it is care that falls below the acceptable standards of the profession, such as:

  • Prescribing medication meant for a different patient
  • Failing to diagnose a medical condition that was apparent from the symptoms
  • Performing a wrong-site or a wrong-patient surgery
  • Leaving a foreign object inside a patient during a surgery
  • Administering too small of a dose of anesthesia, leading to the patient waking up during the surgical procedure
  • Mixing up lab results, leading to wrong patient information being used by doctors to diagnose a condition
  • A nurse forgetting about a patient in a nursing home and not checking in for several days
  • Using too much force during a baby delivery and hurting the newborn

These are just a few examples of medical malpractice. However, they show the types of negligence that support malpractice allegations. Not all mistakes amount to such a deviation from the standards of the medical profession.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney


Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Who Can Commit Medical Malpractice or Negligence?

Medical malpractice can be committed by any healthcare professional, including:

  • Doctors
  • Surgeons
  • Nurses
  • Physician assistants
  • Dentists
  • Dental hygienists
  • Pharmacists
  • Lab technicians
  • Physical or occupational therapists
  • Mental health therapists
  • Veterinarians

Importantly, though, not all of these medical professionals are expected to uphold the same standard of care. The standard of care is profession-specific: Nurses do not have the same standard of care as doctors, and general practitioners do not have the same one as specialists.

How Can Healthcare Companies Be Held Liable for It?

While individual healthcare professionals are the ones who can actually commit medical malpractice, their employing company can still be sued and even held liable for it through the legal doctrine of respondeat superior. This is a form of vicarious liability – employers are liable for the negligence of their employees, so long as it happens within in the scope of the worker’s employment.

As a result, healthcare companies like the following can be liable for their employees’ medical malpractice:

  • Hospitals
  • Doctors’ clinics and offices
  • Medical schools
  • Surgical facilities
  • Pharmacies
  • Laboratories
  • Veterinarian clinics
  • Nursing homes
  • Urgent care facilities

Because of this potential for medical malpractice liability “climbing up the ladder” to the employing entity, many corporate healthcare providers have taken to hiring as much of their personnel as independent contractors, rather than as employees. If you want to explore that option for your own healthcare facility, our healthcare defense and compliance attorneys can guide you through the process.

How Much Can a Verdict or Settlement Cost?

Medical malpractice claims are among the most costly types of personal injury lawsuits that you can face, particularly if they allege wrongful death or a birth injury. These lawsuits will demand compensation for two types of losses:

  1. Economic damages
  2. Noneconomic damages

Economic damages are those that are easily stated in a dollar amount, like the plaintiff’s medical expenses or lost income associated with the malpractice.

Noneconomic damages are those that cannot be stated easily in a dollar amount. These cover the plaintiff’s losses for their:

  • Physical pain
  • Mental suffering
  • Emotional distress
  • Loss of life’s enjoyments

It also includes compensation for the victim’s loved ones’ loss of companionship and consortium.

Because noneconomic damages are so difficult to determine, they are notorious for being wildly divergent, even in cases that share many similarities, and for inflating verdicts extremely high. To combat this, many states have passed “tort reform” laws that cap these types of damages to reasonable amounts.

In addition to compensation, many medical malpractice lawsuits allege that the negligence was so severe that punitive damages should be assessed, as well.

Altogether, these demands frequently eclipse a million dollars in malpractice lawsuits. In serious cases, it can be well into the tens of millions.

Even for healthcare professionals and facilities that carry medical malpractice insurance, the huge demands made in these cases can pose a serious risk to their personal and business assets if they are higher than the insurance policy’s limits.

What are Some Legal Defenses to Medical Malpractice?

There are, however, numerous strong legal medical malpractice defenses that healthcare professionals and organizations can raise against an allegation of medical malpractice. Below are just a few of them.

You Met the Applicable Standard of Care

The equivalent of arguing that you did not, in fact, commit malpractice, this is often the preferred line of defense. If successful, you can clear your name and position yourself well for any other repercussions that are looming from the incident.

The Statute of Limitations Has Run

Plaintiffs must file their lawsuit before the statute of limitations has run on their case. If they fail to do this, you can easily dismiss their claim, no matter how damning their case against you may be.

Many people see this line of defense as getting off on a technicality, but the statute of limitations is there for numerous reasons. Not only does it let potential defendants repose and move on with their lives after enough time has passed, the statute of limitations also forces plaintiffs to act while evidence is still obtainable and memories are fresh.

Malpractice Occurred, But Did Not Cause the Injuries

A rare legal defense to use, this one focuses on the element of causation. The plaintiff has to prove that their losses were the result of the malpractice. But if they were the result of something else, like a preexisting condition or the patient’s own conduct, you should not be held liable for it.

Like the next legal defense, this one tacitly admits to the malpractice occurring. This can make it a risky one to use all on its own.

Malpractice Occurred, But Someone Else Did It

A potentially strong legal defense for individual practitioners, but rarely for healthcare entities, pointing the finger at another medical professional can be a strong defense if the patient was under anesthesia when the malpractice happened and does not know who did it.

5 Frequently Asked Questions About Medical Malpractice Defense and Oberheiden P.C.

Why Shouldn’t I Trust My Medical Malpractice Insurance Company’s Defense Lawyer?

Especially in cases that demand more compensation than the insurance policy would cover, the defense lawyer provided by your malpractice insurance company may have a conflict of interest. Remember, they represent the insurance company, not you. If there is a way to protect the company at your expense, they will do it.

What Other Penalties Could I Face for Malpractice?

In addition to the financial costs of the settlement or verdict, medical malpractice allegations can seriously damage your professional reputation. Individual practitioners may also face workplace discipline, up to and including termination, for committing medical malpractice, face additional difficulties in getting hired somewhere else, pay higher insurance premiums, and potentially even face an action against their medical license.

What Does It Mean to Be a National Law Firm?

Oberheiden P.C. is a national law firm with its headquarters in Texas, but with satellite offices scattered across the U.S. We are located in nearly every major U.S. city.

What Sets Oberheiden P.C. Apart from Other Firms?

Oberheiden P.C. takes a unique approach to legal representation.

At other firms, there is a hierarchy of partners and senior lawyers at the top, and then lots of junior associates and paralegals further down. The people who hire these firms often do so because it is the experience of the senior lawyers that is advertised. However, they then see the vast majority of the work on their case being performed by a junior associate. In many cases, the senior attorneys barely supervise that legal work.

That does not happen at Oberheiden P.C. because our entire legal roster is composed of senior-level lawyers. They do all of the work on your case, so you can rest assured that the entire work product is the result of an experienced attorney’s efforts.

Why Doesn’t Oberheiden P.C. Call Itself the Best Medical Malpractice Defense Firm?

We prefer letting prior clients say these sorts of things in the testimonials that they leave about our firm.

Reach Out to the Medical Malpractice Defense Lawyers at Oberheiden P.C.

The medical malpractice defense lawyers at Oberheiden P.C. legally defend healthcare professionals and entities across the U.S. Call their national intake number at (888) 680-1745 or contact them online.

Further Reading About Our Medical Malpractice Defense Services

Medical Malpractice Defense Geographic Areas

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