Definitions for Common Medical Malpractice Legal Terms

Definitions-for-Common-Medical-Malpractice-Legal-TermsIf you’re involved in a medical malpractice lawsuit or are considering filing a suit, you’ll want to familiarize yourself with some of the legal terminology that you’re likely to encounter in the course of your suit. The following are some basic terms used in malpractice suits whose meaning may be unclear to someone outside of the legal profession.

Assumption of risk

In cases involving negligence, assumption of risk refers to allegations by the defendant that the plaintiff was aware of the risks involved in a particular course of action but decided to follow it anyway. In medical malpractice cases this usually involves allegations that the plaintiff was aware of the risks of the medical procedure they underwent and that the harm alleged by the plaintiff was, in fact, a risk that they had consented to by agreeing to undergo the procedure.

Comparative negligence

A term referring to the legal ability to distribute degrees of fault among various negligent parties. In medical malpractice cases this might involve the distribution of blame between a doctor and a hospital or it might indicate the distribution of relative fault between a doctor and a patient who failed to follow the doctor’s instructions for post-surgery care and rehabilitation.

Medical negligence

Medical negligence indicates a failure on the part of a healthcare professional to conform to accepted standards of practice. As with all legal cases involving negligence, it is not necessary to prove that the accused party <i>intended</i> to cause harm but merely to demonstrate that the accused could have been reasonably expected to avoid this harm.

Preponderance of evidence

In a civil trial, like a malpractice case, the burden of proof is much less than in a criminal trial. The accused party is considered guilty in a civil trial if the charge is more likely to be true than not true; that is, if the preponderance of the evidence is in the plaintiff’s favor.


In the context of medical malpractice, subrogation refers to the entitlement of an insurance company to part of an injured person’s settlement if the company paid a claim related to that injury.

Standards of practice

Standards of practice are established on the basis of what a reasonable individual with an appropriate level of medical knowledge would do in a particular situation. Standards of practice are defined by the national organizations representing various medical professions, thus there are different standards of practice for nurses, doctors, physician’s assistants, etc.

Statute of limitations

Statute of limitations refers to the limited time in which a lawsuit can be filed after the alleged offense occurred. The statute of limitations for medical malpractice lawsuits varies depending on the state in which the alleged offense occurred and the type of malpractice that is being alleged.