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What is Medical Malpractice?

Medical Malpractice Explained

Medical malpractice and medical negligence are terms which mean a failure by a doctor or other healthcare provider to act with reasonable care and diligence in the care or monitoring of a patient.

What Evidence is Used?

Generally speaking, the most important evidence in medical malpractice cases are the medical records. Those records usually provide the most direct insight into the situation at hand.


Medical literature, including textbooks and peer-reviewed journal articles, provide important information on medical standards. Oftentimes, however, because each patient’s situation is different, the literature does not tell the whole story. Expert witness opinion and testimony can help fill the gaps, as well as testimony from medical providers who were on the scene, or testimony from other witnesses.

doctor in handcuffs

What is a Typical Example of a Medical Malpractice Case?

Each patient is different and each medical scenario is different. As a result, medical malpractice cases can arise from any situation involving medical care. However, some scenarios more commonly result in medical malpractice claims, such as:

  • Failure to diagnose a heart attack, stroke, or pulmonary embolism
  • Delayed diagnosis of a terminal illness
  • Improper prescription of medication
  • Anesthesia errors
  • Birth errors


Again, each patient is different, and countless factors play into each case. A qualified lawyer can help you determine if you or your loved one was victimized by medical malpractice.

How is a Medical Malpractice Case Proven?

medical malpractice case always involves a significant upfront investigation. The first step is obtaining the important medical records, which we review internally. Every page needs to be reviewed for details which may prove important to your case.

In order to file a medical malpractice lawsuit in Ohio, you need to have the case reviewed by one or more qualified medical providers (i.e. “expert witnesses”). Those providers must provide sworn statements stating that your case has merit. Thus, once we have completed our internal review, we will determine whether or not there are sufficient grounds to warrant sending the medical records to one or more expert witnesses.

Only when the medical experts believe that your case has merit and submit a sworn statement saying so can your case can be filed in court.

It is important to realize that an error by a medical provider alone will not be sufficient to pursue a medical malpractice case. A provider’s error must have caused actual and substantial injury and damages in order for the case to be pursued. In recent years, Ohio lawmakers have passed laws, often referred to as “tort reform,” limiting the types and amounts of damages that can be obtained in medical malpractice cases. Because of tort reform, only a small subset of medical provider errors can be pursued through malpractice lawsuits.

Timing is Crucial

Once the statute of limitations expires, you can no longer pursue a medical malpractice claim. One year is not much time, and medical malpractice cases typically involve significant investigation before they can be filed in court. Sometimes, evidence needs to be preserved in a short timeframe, such as the testimony of a terminally ill malpractice victim. A qualified medical malpractice lawyer can guide you through initial steps and make sure that your interests are protected.

What Is an “Affidavit of Merit” and How Does It Affect My Medical Malpractice Case?

Medical malpractice claims are not like other kinds of personal injury lawsuits. One key difference is that Ohio law requires a malpractice plaintiff to submit an Affidavit of Merit to the court as part of their complaint. This affidavit requirement applies in any case that “contains a medical claim, dental claim, optometric claim, or chiropractic claim,” and is intended to discourage the filing of frivolous malpractice lawsuits.

The plaintiff does not actually sign the affidavit. Rather, the plaintiff must find an “expert witness” who can certify three things:

  1. The witness has “reviewed all medical records reasonably available to the plaintiff” with respect to the malpractice allegations.
  2. The witness is “familiar with the applicable standard of care.”
  3. The witness is of the opinion that this standard of care “was breached by one or more of the defendants” named in the lawsuit, and that said breach “caused injury to the plaintiff.”

Magistrate Advises Dismissing Air Force Veteran’s Lawsuit Due to Lack of Affidavit

The Affidavit of Merit is not an optional requirement. To illustrate what happens when a plaintiff fails to comply, here is a recent case, Murphy v. United States of America, where a federal magistrate recommended dismissing a malpractice complaint where the plaintiff never filed an affidavit. This case is also notable for two reasons: the plaintiff represented himself without the assistance of a qualified medical malpractice attorney, and the defendant is the federal government.

In brief, the plaintiff is a U.S. Air Force veteran who received knee replacement surgery at a Department of Veterans Affairs hospital in Cincinnati. In his lawsuit, the plaintiff alleged he developed a post-op infection that was never properly diagnosed or treated by VA doctors. Instead, the plaintiff had to seek further treatment from a private specialist to address the infection. But even now, the plaintiff said he continues to suffer “pain and an almost complete loss of the functionality of his right knee and leg,” which effectively ended his military career.

The plaintiff sued the federal government for medical malpractice. Such lawsuits are permitted under the Federal Tort Claims Act (FTCA). This law requires federal courts to try medical malpractice and other personal injury claims under the law of the relevant state, which in this case is Ohio. This also means that the plaintiff was required to comply with the affidavit requirement as a condition of proceeding with his lawsuit.

Unfortunately, the plaintiff never filed an affidavit, despite receiving two extensions of time from the court. In fact, the magistrate overseeing the case noted the plaintiff was given “well over a year since the filing of the complaint to submit one.” (Normally, extensions are for 90 days after the filing of the original complaint.) For that reason, the magistrate advised the district court to dismiss the plaintiff’s complaint.

Get Help from a Cleveland Medical Malpractice Lawyer Today

One reason the plaintiff in the above case may have been unable to meet the affidavit deadline is that he lacked legal counsel. Do not put yourself in this position. If you are even contemplating a lawsuit, you need to speak with a qualified Cleveland medical malpractice lawyer. Contact Tittle & Perlmuter at (216) 242-1361 if you need help today. We serve clients in Cleveland, Lakewood, Elyria, Chardon, Sandusky and surrounding areas.