When an injury victim takes their case to court, it is up to them, the plaintiff, to prove the defendant is responsible for their injuries. In most types of negligence cases, the plaintiff has the burden of proof to show the defendant is responsible. In other types of cases, there may be strict liability or negligence can be presumed.
It is important to understand what the injury victim has to prove before filing a medical malpractice lawsuit. If you want to know more about filing a medical malpractice lawsuit against a doctor, nurse, or hospital, contact an experienced medical malpractice law firm for more information.
What Is the Burden of Proof?
In a civil lawsuit, the plaintiff has the burden of proving their case by a preponderance of the evidence. A preponderance of the evidence means more likely than not that the defendant is responsible for the damage. Preponderance of the evidence is a lower standard than in criminal cases where the prosecutor has to prove the case “beyond a reasonable doubt.”
Burden of Proof in a Medical Malpractice Case
In a medical malpractice case, the plaintiff, who is the person claiming the injury, has the burden to prove it is more likely than not that the defendant is liable for damages. For example, the plaintiff has to show it is more than 50% likely that the defendant deviated from the medical standards of care and caused the patient’s injuries.
What Do You Have to Prove in a Medical Malpractice Lawsuit?
There are four elements to prove in a medical malpractice lawsuit. For the plaintiff to win their case, they have to meet each element with a preponderance of the evidence. If any element fails, then the plaintiff may lose their case. The elements of a medical malpractice case include:
First, the defendant has to have a duty of care owed to the plaintiff. In most medical malpractice cases, the defendant is a doctor and doctors owe a duty of care to their patients. They have a duty to provide reasonable medical care according to the standards of practice. The injury victim can prove a duty of care by showing that they were a patient of the doctor.
Breach in a medical malpractice case is the deviation from standards of medical care. For example, if a doctor did something that other reasonable doctors did not and it caused an injury, that may be considered a deviation from standard medicine.
The doctor’s deviation has to cause the patient’s injuries. This includes a cause-in-fact and the doctor’s actions were a proximate cause of the injury. Breach and causation are generally shown through using an expert medical witness. The expert witness understands medical standards and they can testify whether or not the doctor deviated from medical standards in caring for the patient and how it caused the injury.
Finally, the patient has to show they suffered harm or damage as a result. Harm can be physical harm, including scarring, disfigurement, loss of a limb, or pain. Harm can also be financial, including medical bills, lost income, and costs for future care to treat the patient’s injuries.
Res Ipsa Loquitur in Medical Malpractice
Res ipsa loquitur is a Latin phrase for “the thing speaks for itself.” In law, res ipsa loquitur is used as an alternative to the standard elements for negligence. In many cases, a res ipsa loquitur claim does not require an expert witness to testify about the medical standard of care.
In negligence cases, the plaintiff has to show the defendant had a duty, breached their duty, and caused harm. With res ipsa loquitur, the damage would not have occurred unless someone was negligent. The elements for res ipsa loquitur negligence include:
- The injury would not have normally occurred without negligence;
- The defendant was in exclusive control of the situation that caused the injury; and
- The plaintiff did not contribute to the injury.
In these types of medical malpractice claims, the injury victim can shift the burden of proof to the defendants after proving the elements of res ipsa loquitur. For example, if there were 3 surgeons involved in the surgery but the injury victim did not know who was responsible for their injury, they could shift the burden to the three surgeons to determine which ones caused the harm.
Burden of Proof in a Left-Behind Surgical Instrument Injury
A left-behind surgical item is a terrible surgical error. Patients who are under anesthesia during surgery have no idea what is happening during the surgery and only wake up after the procedure is over. The patient is sent home to recover but may suddenly develop unexplained complications. An object left behind in a patient can cause pain, tissue damage, and serious infections. Without understanding the cause of their pain, the patient may be left suffering for weeks or months, before the real cause is identified.
A retained foreign object surgical error is known as a “never event,” or an event that would never normally occur but for negligence. According to the Centers for Medicare & Medicaid Services, these types of 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.”
In a medical malpractice lawsuit for a retained foreign object, the injury victim could show that the surgical items that were left inside the patient’s body wouldn’t normally occur without negligence. The surgeons and support staff were the only ones who were in control of the inside of the patient’s body at the time of the surgery. The patient could not have contributed to the error and the surgeons should be held liable for their failures.
Burden of Proof in a Wrong-Site/Wrong-Patient Surgery
Other surgical errors may be able to show that the negligence speaks for itself and was caused by the doctors or hospital involved. Wrong-site, wrong-side, and wrong-patient surgeries are also types of never events. A hospital should not operate on the wrong patient, perform the wrong procedure, or switch sides for the procedure. These errors would only tend to happen if the doctor or hospital was negligent.
For example, a patient is in for surgery to have a damaged left kidney removed. When the patient wakes up, they see a scar on their right side and the surgeon made a mistake and removed the healthy kidney instead of the bad kidney. The patient could recover damages from the doctors involved to pay for their medical care, lost wages, and any future treatment, pain and suffering, and emotional distress.
Burden of Proof in Defective Device or Defective Medication Injury
There is another standard for negligence used in product defect cases. Defective products that cause injury are handled differently from standard malpractice cases because it may be impossible to know who was responsible for selling a defective product. Instead, putting a defective product on the market that causes injury is negligence by itself.
In a product defect claim, including defective medicine or a defective medical device, the plaintiff can claim negligence per se. The injury victim does not have to prove that any one individual was the cause of the injury but that anyone in the chain of commerce could be held responsible for causing the injury. The elements in a negligence per se lawsuit include:
- The product was defective at the time of the injury.
- The defective product was the proximate cause of the injury.
- The product was in the same condition at the time of the injury that it was in at the time of manufacture.
- The product was used in a manner that was reasonably foreseeable at the time of the injury.
Product defect claims can involve dangerous consumer products or medical products, including medical devices and pharmaceuticals. There are three ways a defective product can cause injury through use:
Defective Designs in Medical Devices
With a design defect, the product was produced as designed but there is a flaw in the design that makes it dangerous to users. For example, if a hip replacement artificial joint is designed improperly, it could wear down and release metal shavings into the patient’s body, causing injury. The product was designed defectively and should not have been sold to consumers. The manufacturers are in a better position to test their products and understand when they might present a danger to users.
Manufacturing Defects and Defective Drugs
With a manufacturing defect, there is something that went wrong while the product was being made. As a result, the product does not conform to the original designs and is dangerous for people to use. For example, in a drug defect case, a problem in the lab could have introduced bacteria into the sterile drugs, causing a patient to suffer a serious infection when administered the drugs. This could be due to a manufacturing defect and the drug company should be held responsible for their negligence.
Failure to Warn in Medical Injury Cases
In a warning defect case, the company selling the product fails to warn users about the risks of using their product, which means they can be held responsible for the foreseeable results. In a defective drug claim, a drug may be known by the manufacturer to cause certain side effects but they do not warn users about the side effects or adverse effects. If a patient suffers serious side effects that the drug company knew about but failed to disclose, the drug company could be liable for damages.
Defective Medical Device Injuries
- Cardioverter defibrillator
- Left ventricular assist device
- Breast implants
- Cochlear implants
- Knee implants
- Hip implants
- Intraocular lenses
- Intrauterine devices (IUD)
These products can be implanted in the body and become a permanent part of the patient’s biology. For implanting medical devices, these products need to be safe, including safe design, manufacturing, and complete with detailed warnings. If these products are defective, they may cause serious injury to the patient.
If a patient is injured because of a defective implant, they may be able to file a claim against the manufacturer, medical device company, or vendor for negligence. The injury victim could claim money for medical bills, follow-up surgery, loss of income, and pain and suffering.
Defective Drug Injuries
There are countless drugs and medications that are recalled or taken off the market because they are dangerous for patients because of defects or improper warnings. These drugs may be recalled by the drug company or by the FDA. According to the FDA, a Class I recall involves a situation where there is a “reasonable probability that the use of or exposure to a violative product will cause serious adverse health consequences or death.”
When a drug causes injuries that were not disclosed or because of contamination, the pharmaceutical company may be responsible for damages. Like a product defect claim, the injury victim may have to show that the drug was dangerous because of the way it was designed, there was a problem during manufacturing, or the drug lacked proper warnings. Dangerous drugs that could cause the user to suffer permanent injuries or death include:
- Unsterile packaging
- Higher or lower potency than labeled
- Particulate matter
- Banned ingredients
- Tainted drug supplies
- Improper seal on the packaging
- Undisclosed ingredients
Find a Medical Malpractice Lawyer for Your Case
Medical malpractice cases are complicated and attorneys who regularly handle these types of cases understand how to prove your case so you can recover the maximum damages available. States and local courts often have specific rules for medical malpractice cases that can be difficult to navigate for people without extensive trial experience.
It is important to talk to a medical malpractice attorney as soon as possible after your injury. There is a limited amount of time to file a medical malpractice lawsuit and if you wait too long you could lose your right to recover compensation. Talk to a medical malpractice lawyer to understand when you have to file your claim and how much you might be able to recover in a settlement or jury award.
Contact experienced medical malpractice attorneys who can look at your case, answer your questions, and help you understand your legal options to file a claim against a doctor or hospital after a medical error. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.