When you file a medical malpractice lawsuit, you are responsible for proving to the court that the doctor or hospital committed malpractice. This includes showing evidence that supports your case, that the doctor did something wrong that caused your injuries. It is important to know what kind of evidence you need to prove your case in court.
Evidence in a medical malpractice lawsuit can include medical records, expert witness reports, and medical bills. The evidence in your case can show the doctor committed malpractice and support your claim for damages. One of the first things you do when you meet with your medical malpractice lawyer is to find out how you can help gather all the evidence you need to build a strong case.
Contact an experienced medical malpractice lawyer for legal advice about your case. Your lawyer can help you understand your legal options and get the money you deserve after suffering a medical injury.
What Is Evidence in a Medical Malpractice Case?
In law, evidence is information or objects that can be admitted into court when hearing a case. Evidence is any information that makes the existence of a fact more or less probable. Evidence in a medical malpractice case will be used to prove the elements of a medical malpractice claim. The elements of medical malpractice include:
- Duty of care
- Breach of duty
- Causation of an injury
- Suffering harm
If there is a doctor providing care, they have a duty to the patient to act as a reasonable doctor would under similar circumstances. Showing the doctor breached their duty of care usually involves showing a deviation from standard medical practices. For example, did the doctor fail to do something another doctor would have done? Alternatively, did your doctor do something another doctor would not have done?
Your lawsuit will also involve showing that the deviation caused harm. This includes evidence in support of your case to help prove the doctor’s actions resulted in injury and you suffered harm as a result of the doctor’s negligence. Showing harm can be part of your claim for damages. To recover money for your injuries, you have to show what losses you suffered because of the injury, including financial losses and non-economic damages.
Examples of Evidence in a Medical Malpractice Case
There may be a lot of evidence in support of your case that can help the judge or jury understand the cause and impacts of the doctor’s negligence. Evidence can involve direct and indirect proof. In many malpractice cases, it is a combination of multiple types of evidence that help the jury find “by a preponderance of the evidence,” that the injury victim was injured because of a doctor’s malpractice. Common types of evidence that can be used to prove a medical negligence claim may include:
- Medical records
- Hospital records
- Psychological records
- Medical examinations
- Deposition testimony
- Interrogatory answers
- Healthcare policies and regulations
- Records from the doctor
- Informed consent records
- Medical bills
- Payroll records
- Day-in-the-life video
- Diary entries
- Video or audio recordings
- Expert witness reports
- Photographs of the injury area
- Diagnostic test results
- Witness statements
Gathering Evidence for a Medical Malpractice Case
Some evidence you may be able to gather on your own before you file a lawsuit. However, other evidence may have to wait until after you file a complaint in court. As part of the legal proceedings, there is an exchange of “discovery.” Discovery is the legal term for exchanging information and evidence that is relevant to the case.
As part of the initial pleadings, there is a demand for evidence and information from both sides. Your attorney will make a demand from the other defendants, including the doctors and hospitals involved in your care. Evidence they may have can include:
- Medical records
- Video recordings
- Check-in times
- Administrative records
- Hospital records
- Policies and procedures
- Insurance records
Evidence can also include testimony from the parties involved and other witnesses. Gathering testimony is done through depositions. Depositions are legal proceedings where the witness responds to questions from the attorneys and a stenographer is on hand to record the statements. These statements can be used in court to support your case. As the injury victim in a medical malpractice case, you will generally have to participate in a deposition where you respond to questions from the defendants’ attorneys. However, your attorney will be there to support you and can help you prepare for the deposition so you know what to expect.
Getting Your Medical Records
Medical records can be the most important evidence in a medical malpractice claim. Medical records may be the only evidence of what happened during the events in question, detailing the patient’s treatment and recording any evidence of negligence. For example, in a lawsuit involving administering too much medication, the medical records can show:
- The prescription for medication
- How much medication was administered
- When the drugs were administered
- How the medication was administered
- Who administered the medication
- How the patient was treated after the medication error
Your medical records can be vital in a medical malpractice lawsuit to show what happened before, during, and after a medical error. Your medical records may be held by the doctor’s office or hospital but you have the right to get a copy of your records. You can request a copy of all your medical records from your care provider and they are required to provide a copy.
Unfortunately, many patients report problems when trying to get a copy of their medical records. Under the Health Insurance Portability and Accountability Act (HIPAA, patients’ protected information must be kept private and patients have the right to access to their personal health information. In general, a healthcare provider has up to 30 days to provide a copy of the health record.
If the doctor’s office is stalling or does not give you all your records, you can report the provider for a HIPAA violation. If you have filed your medical malpractice case in court, you can also file a motion to compel the defendant to hand over medical records.
Is the Doctor Hiding Evidence?
After gathering all the evidence, you may suspect there is something that hasn’t been turned over. If you remember something from your medical treatment that does not appear in the medical records, there may be missing records. Talk to your medical malpractice attorney if you suspect there are missing records. Your attorney can go to the judge to force them to turn over all evidence.
Who Considers the Evidence to Decide Your Case?
In most cases, it is a jury who will consider your evidence to decide your case. The jury is made up of people from your community. After all, the evidence is presented and each side presents its case, the jury will decide the outcome. The jury is given a set of jury instructions by the judge and will respond to each issue deciding if it is more likely than not that you have proven all the elements of the claim.
You may be worried that the average citizen does not understand medical terminology and complex medical procedures. However, the jury will hear from medical experts who have also reviewed your evidence. Medical experts can testify about your case and give their expert opinion on whether your injuries were caused by medical malpractice.
Expert Witness Evidence
Most medical malpractice cases require the testimony or reports from a medical expert. A medical expert is often needed to show there was a deviation from the standards of medical care. Unless you have the medical training and experience of a doctor in a similar medical field, you may not know what the medical standards are.
A medical expert is generally qualified because of their knowledge, skill, experience, training, and education. Medical malpractice experts are usually experienced doctors in a similar area of practice as the doctor who caused your injury. For example, if you were injured because of an anesthesiology error, the medical expert in your case may be an anesthesiologist who understands the standard practices of anesthesiology.
The medical expert will review all the evidence gathered in your case and come up with an opinion on the doctor’s actions, whether or not there was a deviation from medical standards that caused an injury. A medical expert can provide support to your case in a few ways, including:
- Certification of merit
- Creating an expert report
- Responding to the defense expert witness report
- Providing expert witness testimony at trial
Each side in a medical malpractice case may use one or more experts. As the injury victim, your expert will generally be someone who believes your injury was caused by medical malpractice. The defendants will present another expert who will likely try and deny the injury was caused by malpractice. It is ultimately up to the jury to decide which expert they side with in light of the evidence presented.
Evidence to Show Damages
Part of the medical malpractice lawsuit will include a demand for damages. Damages is the legal name for the financial compensation you are seeking after a personal injury or medical malpractice claim. Damages in these lawsuits are known as compensatory damages. These damages are supposed to compensate you for your losses and put you into a similar position you would have been if the medical mistake had never occurred.
In general, medical malpractice damages are categorized as economic and non-economic damages. The economic damages generally have a set amount of money based on financial losses related to your accident. The most common examples of economic damages include medical bills and loss of income.
If you were injured because of a medical error, you may have to undergo additional treatment to address your medical injuries. Even if the injury was caused by another provider, the hospital will still generally send you bills for your treatment. These medical bills can be used as evidence to show your economic losses caused by the injury.
After a medical injury, you may not be able to return to work. Your injuries can keep you working for a few days, a few weeks, or even lead to permanent disability. Evidence to show your loss of income can include past payroll records that show the amount you normally get paid to show what you would have earned if you had not been injured.
Evidence to Show Future Damages
If you suffered a permanent injury, your damages may not have ended and will continue for the future. How do you show evidence of losses in the future? To recover future damages, you may have to rely on a forensic economic expert who will calculate the present value of future losses. These experts can testify about an estimation of how much you would have earned over your lifetime but for the injury, based on statistics, inflation rates, and other factors.
Evidence to Show Non-Economic Damages
Non-economic damages are losses that may be harder to put a value on. The most common example of non-economic damages in a medical malpractice lawsuit is pain and suffering. If someone was no longer able to walk because of a serious medical injury, most people understand that it would cause unnecessary pain and suffering. Non-economic damages may estimate the value of these losses, including emotional distress and loss of enjoyment in life.
Other Questions About Evidence in Medical Malpractice Cases?
If you have other questions about medical malpractice cases and what evidence you need to prove your case, talk to an experienced malpractice attorney as soon as possible. There is a limited amount of time to file a medical malpractice lawsuit. If you file your case too late, your claim may be denied and you will lose out on compensation.
Experienced medical malpractice lawyers, like the trial attorneys at Gilman & Bedigian, have extensive experience in medical malpractice claims because they focus on just these types of cases. With the right legal team on your side, you will have the resources to help you recover damages after suffering a medical injury. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.