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What Elements of Malpractice Are Hardest to Prove?

There are four basic elements of a medical malpractice case. To win compensation for a medical injury, the plaintiff has to prove each element of the claim. Even if you think you have a strong case, it is important for you to address each element of medical malpractice or you could have your claim denied. 

An experienced medical malpractice attorney understands the importance of proving each element of a medical malpractice claim, including showing the extent of damages. If you have questions about recovering compensation for a medical injury, contact experienced medical malpractice trial attorneys to make sure you recover the full amount of money available for your injuries. 

What Are the Elements of Medical Malpractice?

Elements refer to the legal term for the components of a legal claim. Causes of action in civil court and criminal charges have elements of the law that must be proven to win a case. Medical malpractice generally has 4 elements, similar to a negligence lawsuit

  1. The doctor owed the patient a duty of care;
  2. The doctor breached that duty of care; 
  3. The patient suffered an injury caused by the doctor’s negligence; and 
  4. The patient suffered harm as a result. 

In a civil lawsuit, the elements must be proven “by a preponderance of the evidence.” This just means “more likely than not.” If you think of it as a percentage, you have to prove each element by more than 50%. This is a lower burden than in criminal cases, where the elements have to be proven “beyond a reasonable doubt.” 

In general, elements 2 and 3 are the most contested. The plaintiff needs to show not only that the doctor deviated from medical standards but also that the deviation caused the injury. However, the plaintiff still has to prove all elements of the claim because if even one element falls, the malpractice claim will fall. Talk to your medical malpractice attorney if you have questions about the elements of a medical malpractice lawsuit.

Duty of Care and Doctor-Patient Relationship

Duty of care in a medical malpractice lawsuit is generally demonstrated where there is a doctor-patient relationship. Doctors owe their patients a duty of care to provide reasonable medical care under the circumstances. If you can show that the defendant was the plaintiff’s doctor, that will generally show a duty of care. 

However, in some cases, the doctor disputes that they owed a duty of care to the plaintiff. The doctor may have claimed that they were never involved in the patient’s care or never saw the patient. If the patient can show the doctor’s name, signature, or other notes on the patient’s medical records, that can be used to show the doctor owed the patient a duty of care.   

Breach and Deviation from Medical Standards

A breach of the duty of care in medical malpractice generally involves the doctor deviating from medical standards. If the doctor in your case did something other doctors would not have, or if your doctor failed to do something that other doctors would have done, it may be a deviation. 

Doctors have the discretion to treat patients and they may believe that one treatment is preferable to another. However, if the doctor’s care was unreasonable, or something a reasonable doctor would not have done, this may be a breach of the doctor’s duty of care. 

How do you show a breach in a medical malpractice case? In a car accident negligence lawsuit, the average juror can judge whether a driver was reasonable or not because most jurors are familiar with driving and vehicle laws. However, most jurors are not medically trained and are not doctors. In malpractice lawsuits, a medical expert can testify to the jury to help them understand whether the doctor acted reasonably or not. 

A medical expert will generally prepare an expert report in a medical malpractice lawsuit. The expert report sets out the expert’s qualifications, their review of the relevant material in the case, and their opinion based on their qualified training, education, and experience. 

Cause-in-Fact and Proximate Cause

According to an article in the National Law Review, “it is often difficult to prove within a reasonable degree of medical certainty that a bad surgical outcome was “caused” by negligence of the surgeon.”

For example, in a delayed cancer diagnosis, the doctor did not “cause” the cancer. However, failure to properly diagnose the cancer in a timely manner may have resulted in the cancer growing or spreading to other parts of the body. In this situation, the patient would have to prove that the outcome or prognosis is worse because of the delay. 

Causation in a medical malpractice lawsuit can include “but-for” causation and proximate cause. But-for causation means that the injury would not have happened “but for” the negligent actions of the doctor. For example, a patient suffered a perforation during stomach surgery that led to an infection. But for the doctor’s improper surgical technique, the patient would not have suffered the perforation or infection. 

In addition, the plaintiff needs to show proximate causation of the injury. Proximate cause means that the injury was a foreseeable result of the doctor’s actions. If there was a superseding event between the doctor’s actions and the injury, then the doctor’s actions may not have been a proximate cause of the injury. Causation can be complicated in medical malpractice cases, so talk to your medical malpractice attorney if you have questions about this element of a medical malpractice lawsuit. 

Suffering Harm 

The final element is harm. Harm can be temporary injuries or permanent damage. In a minor medical malpractice case, the injury victim may have required additional medical care and missed some time away from work. Even minor injuries are considered harm in a medical malpractice case. In a more serious medical malpractice case, the injury victim could suffer permanent disability, disfigurement, brain damage, or death. 

Filing a Medical Malpractice Lawsuit

Unlike other types of negligence lawsuits, the plaintiff generally has to show a valid claim before they can even file the lawsuit. In most states, there is a heightened pleading standard for medical malpractice. The plaintiff may have to provide a certification or affidavit of merit within a short period of time after filing the lawsuit. 

In Maryland, under § 3-2A-04, a medical malpractice claim “shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint.”

The certificate of merit can come from a medical expert. A medical expert will review the medical records and the case and indicate whether there is a basis for filing the lawsuit. For example, a medical malpractice claim may include a qualified expert’s qualifications (usually a doctor practicing in the same area of medicine involved in the malpractice). The expert will indicate they reviewed the record and their opinion is that the doctor’s actions caused the patient’s injuries. 

Medical Expert in Proving Breach and Causation 

The medical expert can be pivotal in proving the element of breach and causation. In proving a breach, the medical expert uses their education, training, and experience to tell the jury what reasonable doctors would have done in the patient’s situation. If the doctor involved in causing the injury did not follow the medical standards of care, that deviation may be used to show the breach of the duty of care. 

Similarly, with causation, the medical expert can testify to the jury how the doctor’s actions directly and proximately caused the patient’s injuries. This may require an understanding of medical standards and human physiology. This is why having the right medical expert is so important. 

Not just anyone can act as a medical expert. An expert witness in a medical malpractice lawsuit has to be qualified by the court. Medical malpractice attorneys understand this process and it is not usually a major issue in a medical malpractice lawsuit involving experienced malpractice trial attorneys. 

In most states, the process for qualifying a medical expert is similar. For example, under the Pennsylvania Rules of Evidence 702, a witness can qualify as an expert based on their knowledge, skill, experience, training, or education. To testify about their opinion in a medical malpractice lawsuit, the expert has to meet the following qualifications:  

  1. “The expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
  2. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
  3. The expert’s methodology is generally accepted in the relevant field.”

The Element of Damages in a Medical Malpractice Lawsuit

Damages are not an element to prove the medical malpractice lawsuit but it is important to recover compensation after proving the case. Damages is the legal term referring to the losses caused by negligence. Damages in a medical malpractice lawsuit are known as compensatory damages. These are payments that are intended to compensate the injury victim for their losses. 

Damages generally consist of economic damages and non-economic damages. Economic damages include the financial losses associated with the medical injury. The most straightforward economic damages include medical bills and lost wages. You can show medical bills by keeping copies of your bills and expenses. Lost wages can be shown with pay stubs and comparing wages before the injury and after. 

Economic damages can also include future expenses. If you suffered a permanent injury, you may need additional medical care for the foreseeable future. These anticipated expenses should be included in your economic damage demand. Other future damages could include loss of earning potential if you are not able to return to your regular employment or have suffered a permanent disability. 

Non-economic damages are generally determined by the jury because there is not always a clear dollar amount. Non-economic damages can include: 

  • Pain and suffering
  • Loss or decreased function of a limb or body part
  • Loss of enjoyment in life
  • Emotional distress
  • Post-traumatic stress disorder (PTSD)
  • Loss of companionship

When Negligence Can Be Presumed

Under the doctrine of res ipsa loquitur, negligence can be inferred. One example of this type of medical malpractice case involves retained foreign objects. A left-behind surgical instrument injury is a type of “never event,” that never happens but for negligence. 

If a patient has a left-behind piece of surgical equipment, including gauze, surgical sponge, scalpels, or other foreign bodies, it could cause serious injury or infection. That type of foreign object does not get left behind in a surgical patient’s body unless a doctor, nurse, or other member of the surgical team was negligent. However, it may not be clear which healthcare worker caused the injury. 

In some cases, the injury victim can use res ipsa loquitur to shift the burden to the hospital or clinic. The jury can infer negligence because a left-behind object would not normally happen without negligence and the surgical object was in the control of the surgical team at the time the negligent actions occurred.  

For example, under the Florida Standard Jury Instructions 402.4c, the presence of a foreign body in the patient’s body establishes negligence unless the defendants prove by a greater weight of the evidence that they were not negligent.

What Do You Need to Prove in Your Medical Malpractice Case?

Each medical malpractice case is different. If you think your injuries may have been caused by medical negligence, get an experienced medical malpractice legal team to review your case. Your attorneys can review your case, let you know your legal options, and file a lawsuit to help you recover compensation for your losses. 

Your attorneys can review your medical records and address each of the elements of a malpractice claim to build a strong case. Your attorneys can also find qualified medical experts to review your case and testify to the jury that the doctors and hospitals involved owed you a duty of care, breached their duty of care, and caused your injuries. Do not hesitate to contact Gilman & Bedigian today for a free consultation.

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