Although the term is most often associated with physicians, medical malpractice includes the acts and omissions of any medical care provider, including dentists, nurses, and therapists. Relying on vicarious liability, claims may also be brought against hospitals, clinics, or medical corporations for the mistakes of their employees.

The plaintiff must prove three things: 1)That the provider breached his/her duty of care towards the patient, i.e. failed to do something that a reasonably prudent provider in the same field would have done under the same or similar circumstances, or did something that no reasonably prudent provider in the same field would have done under the same or similar circumstances. 2)That this breach caused loss or damage. 3)That it is fair and reasonable to hold the defendant liable to pay damages for the harm caused by the malpractice.

Since most medical providers have malpractice insurance, a case in the U.S. usually begins as an insurance claim, made by the attorney for the patient. If liability is admitted and damages can be agreed, the case will be settled early to reduce the amount of costs payable.

Otherwise, the plaintiff will file suit in the appropriate court. Between the filing of suit and the trial, the attorneys for the parties will engage in discovery, which includes interrogatories, requests for documents, and depositions.