Top causes of medical malpractice

By Naveed Saleh, MD, MS, for MDLinx
Published November 10, 2023

Key Takeaways

Almost 50% of physicians aged 55 and older have been sued vs only 8% of physicians aged 40 and younger. Furthermore, female physicians are less likely to get sued due in part to differences in age and specialty.

Fortunately for physicians and healthcare institutions, 68% of claims were dropped, dismissed, or withdrawn in 2015. Of the 7% of the medical liability claims that eventually did go to trial, 88% were won by the defendants. In other words, suits are common but wins by plaintiffs are uncommon.

Let’s take a look at seven top causes of medical malpractice lawsuits.

Misdiagnosis/delayed diagnosis

Misdiagnosis or delayed diagnosis is by far the number one reason for malpractice claims in outpatient settings. The rationale underlying incurred harm deals with the fact that the patient has missed treatment opportunities, which could have prevented morbidity or mortality. Moreover, a case of misdiagnosis could lead to unnecessary treatment that may have harmful negative side effects. For the plaintiff to win such a case, the plaintiff’s lawyers must demonstrate that the physician did not follow proper standard of care. In other words, a competent and experienced physician in the same situation would not have made the same decisions.


Ah, the vagaries of childbirth. The fetus can be injured in multifarious ways during pregnancy or childbirth. Some injuries are particularly harrowing, and can include cerebral palsy, seizure disorders, or paralysis. Of course, some injuries are due to natural causes. OB/GYNs, along with general surgeons, are the physicians most commonly sued.

Litigious injuries can be traced back to the various stages of pregnancy care. Negligent prenatal care includes failing to diagnose a medical condition of the mother—such as preeclampsia, Rh incompatibility, anemia, hypoglycemia, gestational diabetes, herpes, HIV, or lupus—which could hurt or infect the fetus. During childbirth, iatrogenic injuries can stem from failure to anticipate birth complications due to the fetal size, failure to catch a nuchal cord, failure to perform a C-section, or improper use of forceps or a vacuum extractor.


Although anesthesia mistakes are probably less common than surgical ones, they can be much more dangerous. Typical examples of anesthesia claims involve:

  • Failing to solicit a complete patient history indicative of possible complications
  • Failing to apprise the patient of necessary preoperative procedures like not eating (to avoid aspiration)
  • Neglecting vital signs
  • Excessive anesthesia
  • Using defective equipment
  • Failed endotracheal intubation

Even the smallest miscalculation in anesthesia can lead to permanent injury, brain damage, or death.

Informed consent

Informed consent is a big deal. Physicians must follow patient wishes and provide enough information for the patient to make an informed decision. Failure to properly provide informed consent can invite a lawsuit. A patient who doesn’t receive proper notification about all the risks involved in a procedure has good reason to bring a lawsuit if a severe outcome occurs as a result.


Hospitals and clinics are crawling with pathogens, including heavy hitting superbugs like methicillin-resistant Staphylococcus aureus. Healthcare negligence can lead to serious infection, which can form the basis for a malpractice claim. Surprisingly, only 17% of healthcare workers routinely inform non-infected hospital patients about the risks of hospital infections, according to one study.

Medication errors

Each year, as many as 7,000-9,000 people in the United States die because of medication errors. Such errors are cause for many a lawsuit because there are so many mistakes that can be made with medications. A physician could make a mistake with the initial prescription, administer a drug improperly, or miss drug-drug interactions. In the hospital, medication errors most commonly involve dosages, but sometimes, the wrong medications are administered to the wrong patient.

Surgical errors

As noted above, general surgeons are the physicians named most frequently in malpractice lawsuits. Indeed, half of general surgeons have been sued two or more times. It’s true that surgeons occasionally make negligent mistakes, such as puncturing an organ, ligating the wrong blood vessel, operating on the wrong anatomical site, or leaving sponges/instruments in the body. Mistakes can also be made by nursing staff in the postoperative phase of treatment, including the administration of the wrong medications, inappropriate intervention that leads to infection, or failure to give adequate postoperative instructions that lead to complications.


As noted, the vast majority of malpractice claims are dropped, dismissed, or withdrawn. However, these claims still end up costing the defendant an average of $30,000 in legal costs. This amount is 38% of the total expense of all claims. Even suits that go nowhere still end up costing a lot.

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