MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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Is It Hard to Prove Medical Malpractice?

Even if you know in your heart that your doctor made a mistake that caused an injury, proving it in court is a very different process. Proving a medical malpractice case may not be hard or easy but it is generally very complex. The legal system surrounding medical malpractice has developed over decades and has a lot of strict legal requirements. Malpractice cases are generally more complicated than other personal injury lawsuits because they involve professional negligence. 

There may only be a few elements you need to prove for a medical malpractice case but those elements may include a lot of disputed information. Two doctors may look at the same information in different ways. In this way, it is up to the jury to decide which medical expert to believe. For guidance on how hard it will be to prove medical malpractice in your case, talk to your experienced malpractice attorneys. Contact an experienced medical malpractice law firm for legal advice. 

Complexity in Medical Malpractice Cases

Some medical malpractice cases may be more obvious than others. However, even when there is clear evidence of negligence, it can still take months or years to see a medical malpractice case through until the end. Nothing can be taken for granted in a jury case. It is important for your attorney to build the strongest case possible so you can recover the maximum compensation. 

For example, in a birth injury malpractice case, much of the complexity in the lawsuit may have to do with damages. An injury can be permanent and damages can last for 50 years or more. In these types of cases, there may be a lot of disagreement and litigation over how much care and compensation the child will need for a lifetime of living with a birth injury. 

Another reason that seemingly clear malpractice cases can be complicated is they often involve multiple defendants. There may have been a dozen doctors, nurses, and assistants working on a patient’s care over time, including different hospitals and care facilities. There may have been multiple incidents of negligence that caused or worsened the patient’s health. A lot of medical malpractice litigation involves disputes between different doctors and their insurance companies over who is at fault and who should pay the damages.  

Elements of a Medical Malpractice Case

In a medical malpractice case, like other negligence claims, the plaintiff has the burden of proving all elements of the charge, “by a preponderance of the evidence.” A preponderance of the evidence means more likely than not. This burden generally requires showing the plaintiff proved their case more than 50/50. This is a lower burden than in criminal cases, where the burden is “beyond a reasonable doubt.” 

Generally, the elements the plaintiff needs to prove are: 

  • Duty of care
  • Breach of duty
  • Causation
  • Harm

Using Chicago as an example, the elements of a medical malpractice action include: “(1)The standard of care in the medical community by which the physician’s treatment was measured; (2) that the physician deviated from the standard of care; (3) that a resulting injury was proximately caused by the deviation from the standard of care; and (4) Assuming a plaintiff proves this prima facie case and the physician lacks a meritorious defense, “the physician is liable for damages caused by his medical negligence.”

Duty of Care to the Patient

A doctor owes a duty of care to patients, to act in a reasonable manner in treating the patient, given their education, training, and experience. In most cases, proving the duty of care element of the claim is not difficult. It may even be conceded by showing there was a doctor-patient relationship and the doctor was treating the patient around the time of the negligent injury. 

In some cases, a doctor may claim they never saw the patient or the patient refused care. Denying a doctor-patient relationship may involve telehealth, interpreting diagnostic tests remotely, phone communications between a doctor and patient, and extensive treatment when the patient may have seen dozens of doctors, nurses, physician’s assistants, and other care providers, without knowing who was actually providing medical care. 

If the duty of care is in dispute, there is information that can be used as evidence of the doctor-patient duty. Evidence could include: 

  • Witness testimony
  • Medical records
  • Phone records
  • Prescriptions
  • Payroll records

It is important for the patient to understand that there may have been multiple doctors who participated in the care that also committed professional negligence. In some cases, the hospital or medical clinic may also be named as a defendant in a malpractice action. Talk to your medical malpractice lawyer about the duty of care in your claim for damages. 

Breach of Duty

A breach of the duty of care is often treated under the “reasonable person standard.” For example, if a driver did something a reasonably safe driver would not do, which caused an accident, that may be considered a breach. For medical malpractice cases, it is similar to what a reasonable doctor would have done in a similar situation. 

The duty of care of a doctor is different from other professions. Different types of doctors have different types of education and training. For example, the training for a neurosurgeon may be much different than the training for an orthodontist, but both are doctors. 

The standard of care for a doctor is based on, “the same general standard of care applies to all professionals, that is, the same degree of knowledge, skill and, ability as an ordinarily careful professional would exercise under similar circumstances.”

For example, if the lawsuit involved an anesthesiologist providing anesthesia during a knee surgery, did the doctor breach the duty of care that applies to other anesthesiologists, with the similar degree of training, knowledge, skill, and ability, as an ordinarily careful anesthesiologist would exercise under similar circumstances. 

This information is aided by expert witnesses who talk about the standards of care for the specific profession and what medical standards call for under the circumstances. If the doctor involved breached the duty of care, they may have committed malpractice if it caused injury to the patient. 

Causation of the Injury

Even if a doctor breached their duty of care, it is not considered malpractice unless it caused an injury. This requires showing a proximate connection between the doctor’s breach and the patient’s injuries. It may seem clear that when the doctor made a mistake, it was the cause for the injury. However, many malpractice cases dispute causation, or more often, downplay causation, alleging there were other factors that were the primary cause of the injury. 

In a medical malpractice cause, the plaintiff can show causation-in-fact and proximate cause. Causation-in-fact means that the injury could not have otherwise occurred but for the breach of care. Additionally, proximate cause means the error has to be a foreseeable cause of the actions. Again, a medical expert can be useful in proving direct and proximate causation of the injury. 

Harm and Damages

In order to recover after a medical malpractice injury, the injury victim has to show harm. Harm can range from minor to permanent injury. If the doctor’s negligence caused harm, the injury victim can prove their medical malpractice case. 

Damages in a malpractice claim involve any losses or costs associated with the injury. This could include past, current, and future expenses. Damages can also include non-economic damages like emotional harm and loss of support. The most significant damages in a malpractice claim usually involve long-term or permanent injury. For example, damages in a birth injury lawsuit that causes permanent damage could end up costing the family millions of dollars in care. 

Compensatory damages cover the economic and non-economic losses. The most common compensatory damages in a medical injury case include: 

  • Medical bills
  • Future medical care
  • Loss of income
  • Loss of earning capacity
  • Pain and suffering
  • Emotional distress
  • Loss of enjoyment in activities

In a fatal accident, the family members or beneficiaries may be able to recover damages. By filing a wrongful death lawsuit, the family or personal representative can hold the negligent doctors accountable for their actions. This allows the family to recover: 

  • Funeral costs
  • Burial expenses
  • Medical expenses
  • Loss of support
  • Loss of consortium

Proving Breach and Causation for Medical Events

Showing breach and causation for a medical malpractice accident can be more complex than other types of cases. For example, any driver understands that a driver who leans down to pick something off the floor while driving may be acting negligently by taking their eyes off the road. However, how does the average juror know what an orthopedic surgeon should do before surgery? How can the average juror determine if an infant’s brain injury was caused by the doctor’s delayed delivery? 

Something unique about medical malpractice claims is that they almost always use expert witnesses. An expert in a medical malpractice case is usually a doctor with experience and training in a similar area of medicine. The expert, who is not directly involved in the patient’s care, is supposed to be able to tell the jury the standards of practice with medical treatments and procedures. 

For example, if a patient was filing a malpractice case after a surgical site error, the patient may not know that the surgeon did anything wrong. However, if an expert reviewed the medical record, they may be able to identify where the surgeon deviated from care, compromised patient safety, and likely caused the patient to suffer an infection, causing injury. 

Chicago Medical Expert Example

Under the Illinois Rules of Evidence 702, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.”

When You Don’t Have to Prove Negligence to Win

Some types of medical malpractice cases do not require showing a duty, breach, causation, and harm. These are known as res ipsa loquitur. Res ipsa loquitur is Latin for, “the thing speaks for itself.” For example, if a surgical sponge showed up inside your leg shortly after knee surgery, you can be sure that it could not have gotten there unless someone made a serious mistake. Negligence can be assumed because it should be clear that someone was negligent, even if the patient can’t identify who was responsible. 

In a res ipsa loquitur medical malpractice case, the jury would generally hear from an expert to testify:

  1. The injury accident could not generally occur without someone’s negligence; 
  2. The evidence in the case rules out the possibility that a third party or the plaintiff’s own negligence could have caused the injury; and
  3. The type of negligence alleged falls within the scope of duty that the defendant had to the plaintiff.

Common types of res ipsa loquitur involve so-called “never events.” Never events are accidents that would never happen but for negligence. According to the National Quality Forum (NQF) some “never events” include:

If you suffered an injury under these types of circumstances, talk to your medical malpractice attorney about your case. These terrible tragedies happen more often than you would like to believe. It is important to take your case to court to make sure it doesn’t happen to someone else. 

Where Do I Find a Lawyer to Help With My Case?

If you think you have a medical malpractice case to prove or want more answers, the next step is finding a medical malpractice lawyer. Don’t take this next step lightly. A claim lawsuit can take months or years before you recover damages. You need a law firm that will stick with you through the end.  

Look for experienced trial attorneys who have successfully represented medical injury victims and their families to recover financial compensation. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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    Call 800-529-6162 or complete the form. Phones answered 24/7. Most form responses within 5 minutes during business hours, and 2 hours during evenings and weekends.





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