Unintentional Injuries

Far more common than lawsuits for intentional harm are injuries and lawsuits caused by culpable conduct of defendants who did not necessarily intend to harm anyone, but engaged in conduct that they reasonably should have foreseen could cause harm.

As a simple example, a drunk driver may not get behind the wheel with the desire or intent to hurt anyone. Maybe they just want to drive home from the bar. However, if they get into an accident and hurt someone, they are responsible for those injuries. Why? Because they engaged in conduct which any reasonable person knows carries a very high risk of hurting other people.


In going about their daily lives, everyone has what is known as a "duty of care" to avoid causing harm to others. A person is generally deemed to have exercised the minimum amount of care when they refrain from undertaking actions that a reasonable person would not do.

If a person's conduct falls below this standard of care, and as a result, they cause an injury to somebody, they are said to have committed negligence, and are liable for all of the harm caused by their negligent conduct.

Again, drunk driving is an example of extremely negligent conduct. A drunk driver, in addition to suffering criminal penalties, is civilly liable for the harm he or she causes to anyone else (or their property) as a result of driving drunk.

Obviously, what constitutes "reasonable care" is going to vary, depending on the circumstances. Generally, however, it does not vary depending on the person involved. If a person is extremely unintelligent, and is literally incapable of conforming their conduct in some situations to that of an average reasonable person, they will still be held to that standard which they cannot meet. It sounds unfair, and maybe it is, but it's a tradeoff we've made to ensure that, to the extent possible, people are compensated for injuries caused by other people.

Medical Malpractice

People in highly skilled professions, such as doctors, accountants, lawyers, and others, are not held to the same standards as the average Joe, when they're actually plying their trade. Because becoming any one of those professionals requires a large amount of education and training, they are expected to conform to a much higher standard of care than ordinary people.

Negligence of professionals in practicing their profession is called malpractice.

Medical malpractice is generally viewed as the most serious, because mistakes by doctors can fail to treat medical problems, make them worse, or create a bunch of new health problems in the patient. Also, it is the only form of professional negligence that typically involves actual personal injury (as opposed to just financial loss, or harm to legal interests).

Of course, sometimes doctors make honest mistakes, or encounter a problem that they can't fix. This is not medical malpractice.

A doctor commits malpractice when their conduct falls well below what any reasonable person in their profession, with their education and training, would have done in a similar situation.

Obviously, a jury isn't going to be made up of doctors, so they won't know what conduct is reasonable for a doctor, and what isn't. For that reason, both sides in a medical malpractice case have to call expert witnesses (other doctors in the same field) to educate the jury about the relevant standards. It should not be surprising, then, that medical malpractice trials can be very expensive (the time of an expert witness does not come cheap).

Failure in Diagnosis

There are a few common mistakes that often lead to medical malpractice lawsuits.

One of them is a failure to diagnose a serious disease or injury. Many illnesses are far more treatable when they are detected early. Cancer is a common example.

If a patient goes in for a checkup, and a doctor fails to detect a symptom which he or she should have been able to see relatively easily, they may be liable for medical malpractice, especially if the delayed detection makes the illness much worse than it had to be. Of course, if the illness does not get any worse, and is detected later and successfully treated, there is no malpractice, because the patient is not any worse off than they would have been if the disease had been discovered earlier.

Remember, in addition to making a serious error, that error must actually cause harm, for a doctor to be liable for medical malpractice.

Error in Treatment

The other common route to medical malpractice liability is a major error in treating a medical problem. There are often many plausible routes to treat an illness, any one of which a reasonable doctor might choose. If a doctor chooses a reasonable treatment option, he or she is probably not liable for medical malpractice, even if the majority of other doctors would not have chosen it, as long as the treatment they chose was not unreasonable.

However, when a doctor (without a good reason) outright fails to treat an illness or injury, or attempts to do so in a manner that no reasonable doctor would choose, they are liable for any harm that this causes. For example, you sometimes hear about surgeons leaving foreign objects inside a person's body cavity after operating on them. There is absolutely no excuse for this, given how relatively easy it is to keep an inventory of every item used in surgery, and the potential medical consequences (infection, chronic pain, possibly death) of this.

Possible Penalties

If a doctor is found liable for medical malpractice, they (or, more accurately, their liability insurance provider) will have to pay for any subsequent medical expenses caused by the malpractice, as well as lost wages, and other expenses incidental to serious health problems. These expenses are easy to calculate. However, they are also sometimes held liable for pain and suffering. Pain, suffering, and emotional distress are considered injuries in and of themselves, which require compensation. However, it's not really possible to come up with an objective monetary "value" of pain and suffering. In such a case, it's up to a jury to decide the appropriate amount, which can often be much higher than the measurable expenses.

Statute of Limitations

Most legal claims, including medical malpractice, have a statute of limitations – a time limit on bringing the claim, typically several years long. Basically, once a person has a legal claim against someone, they need to bring it within the prescribed time limit, or they lose the right to do so forever.

In medical malpractice, this raises some serious issues. Often, the consequences of a medical error aren't apparent for years after it occurs. So, suppose that a doctor makes an inexcusable error, and it doesn't cause any symptoms for a very long time. Should they be barred from bringing a malpractice claim, even though they had no way of knowing that malpractice occurred? Most people would see this as very unfair. Thankfully, the law of many states takes a similar view. In most states, the statute of limitations begins to run (the clock starts ticking) when the malpractice is actually discovered, or reasonably should have been discovered. This typically gives a person plenty of time to prepare a case against the doctor, if they choose to bring a lawsuit.

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