MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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The 12 Kinds of Evidence You Need to Prove Medical Malpractice

A medical malpractice case relies on evidence to show the jury that the doctors and hospitals involved caused the victim’s injuries. Without any evidence, the case would simply rely on what the plaintiff says versus what the defendant says. A jury needs to see and hear about what went on before, during, and after the claimed medical injury. This is why evidence is so important in a medical malpractice injury lawsuit. 

What is evidence in a medical malpractice lawsuit? Evidence is any material item or statement that can assist the jury in determining matters of fact in a legal case. In a personal injury lawsuit or a medical malpractice case, the jury has to determine if the plaintiff has proven all the elements of the charge. Evidence can help the jury decide whether the elements have been met by a preponderance of the evidence. The burden of proof in a medical error case is whether it is “more likely than not” that the doctor committed malpractice in causing the patient’s injuries. 

What Kind of Evidence Can You Use in a Medical Malpractice Case?

There are hundreds of different types of evidence that may be relevant in a medical malpractice case. However, we can narrow down the types of evidence into those that are most commonly used or necessary in a medical malpractice case. Evidence that can be used to prove a medical negligence claim includes: 

  1. Evidence of physical injury
  2. Medical records
  3. Hospital records
  4. Healthcare policies and regulations
  5. Evidence that speaks for itself (res ipsa loquitur)
  6. Video evidence
  7. Expert witness reports
  8. Incorrect prescriptions
  9. Diagnostic test results
  10. Witness statements
  11. Records of damages
  12. Injury victim’s experience

Below, you can find how these types of evidence are used in a medical malpractice claim to support the injury victim’s case and win an award for damages. 

How Do You Use Evidence to Prove Medical Mistakes?

To win a medical malpractice case before a jury, the injury victim needs to prove all the elements of the claim by a preponderance of the evidence. In general, a medical malpractice claim requires proving: 

  1. There was a doctor-patient relationship and the doctor owed the patient a duty of care; 
  2. The doctor breached the duty of care by deviating from what a reasonable doctor would do; 
  3. The breach of care caused the patient’s injuries; and
  4. The patient suffered harm or damages as a result. 

The twelve kinds of evidence above can be used to prove one or multiple elements of the medical malpractice case

Evidence to Prove Doctor-Patient Duty of Care

A doctor owes a duty of care to their patients. However, the jury may need to be shown that the injured patient was a patient of the doctor in the malpractice claim. In most medical malpractice cases, the patient usually agrees to be treated by the doctor and the doctor agrees to treat the patient. This professional relationship can be long-term care or a one-time treatment. 

When a patient is admitted to the hospital, there may be multiple doctors involved in their care, including emergency room doctors, surgeons, anesthesiologists, and pain management doctors. Even doctors who never physically saw or touched the patient may be involved in their care, including doctors who work remotely to provide phone consultations or review diagnostic imaging studies. 

If a doctor claims they were not involved in the patient’s care, to avoid liability for a medical error, how does the patient show the doctor was, in fact, treating the patient? Evidence to support the patient’s claim that there was a duty of care includes:

  • Medical records
  • Hospital records
  • Video evidence
  • Diagnostic test results
  • Witness statements

Medical Records

Medical records document a patient’s care. Medical records after hospitalization or multiple medical treatments can run hundreds of pages long, including doctor’s notes, imaging studies, diagnostic test results, medications administered, and vital signs. Medical records can show which doctors attended to the patient, reviewed the patient’s care, and who was consulted. 

Hospital Records

Hospital records include the internal records kept by the hospital that are not part of the medical record. During the discovery process, the patient’s medical malpractice lawyer will request a copy of the relevant records. As a defendant, the hospital is required to turn over relevant evidence. If the hospital tries to withhold evidence, the experienced malpractice lawyer can file a motion to compel disclosure. 

Hospital records could include internal records showing who entered information into the patient’s file, which patient was assigned to which doctor, and even hospital policies and practices. Hospital records could show the doctor involved was assigned to care for the patient or the doctor was responsible for supervising other hospital staff with the patient’s care. 

Video Evidence

Video evidence may not always be available. However, some video recordings are taken during some surgical procedures. These videos could show who was involved in the patient’s care and could even record evidence of abnormal practices or negligent treatment. If you have questions about whether there is video evidence, photographs, or other recordings that may be relevant to your case, ask your medical malpractice lawyer for advice. 

Diagnostic Test Results

Diagnostic test results can be vital in a medical malpractice case. Diagnostic tests include imaging scans, blood tests, biopsies, mammograms, and other testing procedures for the patient, including: 

  • X-rays
  • CT scans
  • Amniocentesis
  • Vital signs testing
  • Colonoscopy
  • Endoscopy
  • Genetic testing
  • Kidney function tests
  • MRI scans
  • Nuclear scans
  • PET scans
  • Thyroid tests

These tests may include information about the doctor that ordered the tests and the doctors who may have interpreted the test results. It may also include notifications of irregular results that the interpreting doctor flagged to investigate or get another consultation. These tests can help establish which doctors and healthcare professionals were involved in the diagnostic testing. 

Witness Statements

Witness statements can give the jury an individual accounting of what happened during the relevant treatment. Witnesses in a medical malpractice case can include other doctors, health care workers, other patients, family members, or anyone else who had a first-hand account of what they witnessed. For example, another patient in the same hospital room could provide testimony that the doctor involved had visited the patient. 

Evidence to Prove Breach of Standard of Care

After the patient establishes that the doctor owed the patient a duty of care, additional evidence can help the patient prove that the doctor breached the standard of care or deviated from reasonable care. Proving the breach of care can be complicated and generally requires expert testimony from other doctors. A medical expert witness can testify as to what a reasonable doctor would do under the same circumstances and whether the doctor in the lawsuit did something outside the standard practice. 

An expert witness uses evidence of the case to determine whether the doctor deviated from the standard of care or not. The expert witness is not present at the actual event, so they have to rebuild the situation from the relevant evidence. The expert then uses their years of experience, training, and education to decide what a reasonable doctor would have done, with similar experience, training, and in a similar situation. Evidence that may be used to prove a breach of care may include: 

  • Medical records
  • Hospital records
  • Healthcare policies and regulations
  • Evidence that speaks for itself (res ipsa loquitur)
  • Video evidence
  • Expert witness reports
  • Incorrect prescriptions
  • Diagnostic test results
  • Witness statements
  • Physical evidence of the injury

Medical Records

The medical record is one of the most important pieces of evidence for an expert reviewing the case. The medical record can help recreate what was going on before, during, and after the patient’s care. It allows the expert to understand the lead-up to the medical error, why it took too long to understand, or how the chain of care missed a major problem. Experienced doctors and medical malpractice lawyers understand how to analyze medical records to find problems and signs or symptoms of medical conditions. 

Healthcare Policies and Regulations

Many hospitals have their own policies and regulations that can impact patient care. These policies may indicate what a doctor is supposed to do to document care, seek consultations, and how to communicate with the patient. If a doctor fails to follow the hospital policies, it can indicate a breach of their duties. 

Evidence That Speaks for Itself 

There is a type of evidence that can indicate there was negligence even if there was no one to witness the negligent action. This is known as the legal concept of res ipsa loquitur, or the thing that speaks for itself. The easiest way to explain this type of evidence is to use the example of a left-behind surgical instrument

It may seem unbelievable but foreign objects left in a patient’s body are more common than you might expect. According to one study, surgical instruments are left inside a patient at the rate of up to one for every 1,000 abdominal surgeries. Foreign objects can include: 

  • Surgical sponges
  • Scalpels
  • Scissors
  • Towels
  • Needles

It may take days, weeks, months, or even years before the foreign object is discovered. By the time the surgical item is removed, the patient may have suffered extensive pain and physical damage. In some cases, a left-behind item causes a fatal infection. By the time the problem is discovered, the patient may have no idea who left the item behind but they can be sure it occurred during surgery. 

A left-behind object is known as a “never event.” Never events are, “errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a healthcare facility.” Leaving a surgical item behind is a sign of negligence. Even if the patient has no idea what happened during the surgery, the fact that a surgical sponge or scalpel was left inside the patient is evidence of negligence that speaks for itself.

Incorrect Prescriptions

Prescription problems are another common problem in medical care. Prescription errors can be made by the prescribing doctor, nurse administering medication, or the pharmacist filling a prescription. The prescription, medical record showing drugs administered, and even a prescription bottle may show evidence of the errors. Medication errors that could cause a medical malpractice injury may include: 

  • Illegible handwriting
  • Confusing route of drug administration
  • Errors in the dosage
  • Mixing up similar-sounding drugs
  • Errors in how often the drug is administered

Expert Witness Reports

After the expert witness has reviewed the case, looked at the medical record, heard from the defendants and other defendants, and taken in all the relevant evidence, the doctor or medical expert will write a report. The expert report provides a summary of the facts, the standard care that would be provided by a reasonable doctor, and whether the defendants deviated from the standard of care. 

The witness report is shared between the parties, with each party usually having at least one expert witness but more often more than one. The jury can then hear testimony from the expert to help them determine whether or not the doctor breached the standard of care which caused the patient’s injuries.  

Evidence to Prove Cause of the Injury  

Evidence to prove that the error caused the injury is similar to the types of evidence used to show the breach. Evidence showing that the doctor was a cause in fact tends to show that the problem was caused directly by the doctor or as a cause of one of several errors that led to the victim’s injuries. The cause must also be proximate, meaning not too far removed from a series of events that lead to the injury. Evidence to prove causation may include: 

  • Medical records
  • Hospital records
  • Evidence that speaks for itself 
  • Video evidence
  • Expert witness reports
  • Incorrect prescriptions
  • Diagnostic test results
  • Witness statements
  • Physical evidence that caused the injury

Evidence to Prove Damages and Losses

Finally, the plaintiff has to show that they suffered damages or losses as a result of the medical error. Damages can include physical injuries and economic losses. Injuries can include physical harm, pain and suffering, and emotional harm. The jury will use evidence to determine what damages to include in the injury victim’s award. Even though a financial award may not be able to reverse the losses or physical damage, it is intended to compensate the injury victim. Evidence to prove damages may include: 

  • Evidence of physical injury
  • Video evidence
  • Witness statements
  • Records of damages
  • Injury victim’s experience 

Evidence of Physical Injury

Evidence of a physical injury may include actually seeing the victim’s injuries. This could include photos of the damage after the medical error, required corrective surgeries, or scars from the damage. For example, the jury may see that the injury victim has lost an arm caused by a negligent hospital-acquired infection

Video Evidence

It may be difficult to gauge how seriously an injury can affect someone in daily life. Some injury victims use “day-in-the-life” videos to document their story. A video that shows a typical day can help the jury understand the extent of the injuries. For example, someone who is paralyzed after a surgical error may require daily care and assistance with basic life needs, including bathing, feeding, and transportation for medical appointments. 

Records of Damages

Economic damages include medical bills, lost income, loss of future earnings, and future medical care. Evidence that shows the amount of economic damage can help the jury estimate the total lifetime costs of a medical mistake. This includes showing medical bills, pay stubs, and using experts to project the likely cost of future care and loss of income caused by an injury.

Injury Victim’s Experience 

Things like pain and suffering, mental distress, and the toll an injury takes on someone’s relationships can be difficult to prove. Hearing from the injury victim can help the jury understand the total extent of non-economic losses. A pain journal is an example of evidence that a patient keeps to document their level of pain over time, and how greatly it impacts their life. Journals can show how the victim is struggling to deal with the major life changes after a serious injury. 

Need Help Gather Evidence in a Malpractice Lawsuit?

Medical malpractice cases can be complex and an experienced law firm can help guide you through the process. Talk to experienced trial attorneys who can review your case, get an expert’s review, and help you understand your legal options to file a claim against the doctors and hospitals responsible. 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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